BSJ -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 5 (11 January 2023)

Code, means, materially, a consent freely and voluntarily given, it would have been arguable, in the present case, having regard to the uncontested matters referred to in [82] of the joint judgment, that there was no evidential basis that the appellant actually held the positive belief, at the time that he did the acts the subject of counts 1 and 2, that BA was consenting to them.

1. On 18 November 2021, following a four-day trial before Prior DCJ and a jury, the appellant was convicted of one count of indecent assault contrary to s 323 of the Criminal Code (WA) (Code) (count 1) and one count of sexual penetration without consent contrary to s 325 of the Code (count 2). The jury returned a unanimous verdict of guilty in relation to the indecent assault charge and a majority verdict of guilty in relation to the sexual penetration charge. The appellant was also acquitted, by majority verdict, of a further count of sexual penetration (count 3).
2. The appellant was 63 years of age at the time of the alleged offences. He was in a relationship with the complainant's mother. The complainant (BA) was 17 years old at the time of the alleged offences. The alleged offences occurred when BA was staying at the appellant's home because BA's mother was in hospital.
3. The appellant denied that there was any sexual contact when he was awake - meaning that if he did touch the complainant in the manner she alleged his acts were unwilled and he was not criminally responsible for them pursuant to s 23A of the Code. Separately, before the prosecutor and defence counsel gave their closing addresses to the jury, the trial judge heard submissions about whether there was a sufficient evidential basis for mistake of fact as to consent to be left with the jury. The trial judge concluded that he would not leave mistake pursuant to s 24 of the Code with the jury.
4. There is a single ground of appeal. The appellant contends that the trial judge made a wrong decision on a question of law, or there was a miscarriage of justice, because the trial judge declined to direct the

jury to consider whether the prosecution had proved that the appellant did not have an honest and reasonable, but mistaken, belief that the complainant was consenting to the charged acts.

1. For the reasons that follow the appeal should be dismissed.

1. The prosecution case was outlined in the following terms.[5]
2. The appellant was in a relationship with BA's mother. The appellant lived with his grandson in a Perth suburb. The complainant lived with her mother in a different Perth suburb. On 28 October 2019 BA's mother went into hospital for surgery. BA's mother had asked the appellant to look after BA. BA went to the appellant's home after school. BA intended to sleep on a couch as there were no spare bedrooms at the appellant's home. However, the appellant told BA that she could sleep on the appellant's bed. BA agreed thinking that the appellant would sleep on a couch.
3. BA went to bed at about 9.00 pm.
4. Before BA went to sleep the appellant came into the bedroom and got into the bed. After some time - an hour or so - the appellant moved towards BA and began to cuddle or embrace her by putting his hands around her waist. BA was scared and pretended to be asleep. However, over a period of time the appellant touched BA on her stomach and breast, he kissed BA on her face and neck, he put his hands down her pants and rubbed BA's clitoris on two occasions approximately 10 minutes apart and the appellant ground his pelvis against BA's lower back. Eventually the appellant pulled BA's pants and underwear down to her knees and got on top of her. When that occurred, BA recalled that the appellant looked her in the eyes and then said: 'You don't want this, do you?' The complainant shook her head as if to say 'No'. The complainant then recalled that the appellant said: 'If you didn't want it, you could have just said so'. The appellant then got off the bed and went to the bathroom. BA left the appellant's bedroom and spent the rest of the night on the couch.
5. Count 1 concerned the appellant touching BA on the breast. Counts 2 and 3 concerned the appellant allegedly digitally penetrating BA's vagina on two occasions. By the jury's verdicts it must be taken that the charge was proven in relation to the first occasion (count 2) but not the second (count 3).
6. The prosecutor adduced evidence from BA and BA's mother. The prosecution also relied on evidence of recent complaints as well as medical evidence, DNA evidence and evidence from investigating police officers. BA's evidence took the form of a visually recorded interview (VRI) that occurred on 29 October 2019 and an edited pre‑recording that occurred on 18 December 2020.
7. The defence case relied on two police interviews that the appellant participated in. Defence counsel outlined the appellant's case in an opening address. The appellant did not deny that something had happened. The appellant was asleep. He had woken up, spooning the complainant, and had his hand down her pants - down 'her privates'. But the appellant denied that he was awake when any sexual conduct occurred. Whatever happened, the appellant was not awake for it. The appellant denied that he was awake and consciously or intentionally performing the sexual acts with which he had been charged.[6]
8. The appellant did not give evidence at the trial. In addition to the police interviews, the appellant relied on expert evidence from a sleep and respiratory physician, Dr Scott Claxton. Dr Claxton gave evidence that it was very likely that the appellant would have had severe obstructive sleep apnoea which could have caused a sexual arousal disorder.[7]
9. On appeal the appellant accepted that nothing said in his police interviews sufficed to provide an evidential foundation whereby the issue of mistake of fact was required to be left with the jury.[8] However, given the State's answer to the issue of mistake, it is necessary to recount some of what was said by the appellant in the police interviews.

The materials in the trial record relied on in the appeal BA's account of the alleged offending in the VRI

1. BA confirmed the truthfulness of what was said in the VRI in her pre-recorded evidence.[9] In substance, in the course of the VRI BA recited the events summarised in [11] - [13] above. In explaining how the interactions with the appellant in his bed terminated BA initially stated:

He - he started to grind against me, mm, then - then he pulled my pants down and went on top of me and then - and then he looked - he looked right at my face and said. 'You don't want this, don't you?' and I nodded my head 'No' and then he got off me and that's the end of it.[10]

1. A little later in the VRI, BA was asked to describe how the appellant went on top of her. BA replied:
   1. Uh, he - he brought his self - he - he - he brought himself on top of me and I - he said something to me and I have no idea what he said to me, um, whatever he said I just said, 'Yes', because I was terrified.
   2. And then he said - you said that he said, 'You don't want this, don't you?'
   3. Yeah.[11] (emphasis added)
2. At trial, defence counsel relied on the italicised 'yes' in contending that the trial judge should leave the issue of mistake of fact with the jury (see [35] below). The only other reference to the 'yes' in the VRI was when the interviewer asked BA what happened after she said 'yes'. BA said that the appellant went back to embracing her. The appellant's hands were around BA's waist and the appellant, for the second time, put his hands in BA's pants and under BA's underwear (VRI pages 10 ‑ 11). It follows from this that the 'yes' was said after the touching and penetration the subject of counts 1 and 2. Accordingly, the 'yes' is not part of the relevant factual context for the potential application of s 24 in relation to counts 1 and 2.
3. The interviewer revisited the conclusion of the interactions between BA and the appellant towards the middle of the VRI. That resulted in BA mentioning one further thing:
   1. Okay. And what was the very next thing he did after he pulled your pants down?
   2. Um, he went on top of me again - - -
   3. Yeah.
   4. - - - then he looked at me and then he said, 'You don't want this, don't you?' and I nodded my head, 'No.' And I remember him now saying that, 'If you didn't want it you could've just said so.'[12] (emphasis added)
4. Senior counsel for the appellant emphasised the italicised portion of BA's evidence in his argument in support of the ground of appeal.
5. BA said that she did not say anything while the appellant was touching her. Her body froze. It was only when the appellant started speaking to her about something that BA spoke (VRI pages 17 - 18).
6. There are two other aspects of BA's evidence that should be noted. First, BA was menstruating and was wearing a sanitary pad (VRI page 22). It will be seen that this was known to the appellant. Second, BA was fully clothed. She went to bed wearing a grey sweater with a grey T-shirt underneath. BA was also wearing grey tracksuit pants and underwear (VRI page 21).

1. BA confirmed the truth of what was said in the VRI (ts 19). She said that, before the appellant kissed her, he stared at her right in the eyes (ts 19). At no time did BA give the appellant permission to touch her (ts 22, 49 - 50). But nor did BA tell the appellant to stop (ts 50, 53). Otherwise, broadly speaking, when cross-examined by defence counsel BA confirmed the substance of what she had said in the VRI (see esp ts 45, 48 - 50, 52 - 56, 67 - 68, 71). BA also disagreed with defence counsel so far as counsel suggested that, instead of the appellant saying words to the effect of '[y]ou don't want to do this, do you?', the appellant said words to the effect of '[t]his isn't going to happen' or '[t]his isn't happening' (ts 56 - 57).

The statements made by the appellant in his police interviews

1. Edited versions of the two police interviews were played to the jury at the trial.
2. The first police interview (EROI-1) was conducted the day after the incident, during a search at the appellant's premises. The appellant said that BA chose to sleep in his bed (EROI-1 page 20). The appellant said that when he woke up, at some point in the night, 'I was all over her' (EROI-1 page 20; see also page 23). The appellant said that BA was spooning against him and he had his hand on her pubic area - and that was when he realised what he was doing - but there was no penetration (EROI-1 page 21). The appellant said that as he woke up:

I realised what I was - I - I - I had me hand on her pubic area, right, and I - I - that's when I sort of really woke up properly and I thought Jesus and I said I'm - this is - ain't gonna happen. To myself, to her but I said it loudly so she must have heard me and I said, 'This ain't gonna happen' and I backed off ...[13]

1. The second police interview (EROI-2) was also conducted on 29 October 2019. However, it was conducted at a police station after the search of the appellant's premises. The appellant made similar statements to the effect that he woke up and was startled to find his hand on BA's pubic area (EROI-2 page 8; see also pages 13 - 16, 20 ‑ 21). The appellant had his hand on BA's crotch (EROI-2 page 22) - specifically on her pubic bone on the inside of her underpants (EROI‑2 pages 23 - 24). The appellant also said that he was spooning BA and could remember holding her hand at some stage (EROI‑2 pages 20 - 21).
2. The appellant said that, if anything happened before he woke up, he did not remember it happening. He was not awake or conscious. But the appellant did not think that anything had happened. If he had done anything his jocks would have been off (EROI-2 page 21). But when the appellant awoke BA's tracksuit pants had been pulled down below her hips (EROI-2 pages 22 - 23) - although her underpants were still on (EROI-2 page 24).
3. The appellant said that he was not in control of his actions when he was sleeping. What happened was that the appellant woke up and had his hand on BA's public bone (EROI-2 page 29). He was not aware of what he was doing (EROI-2 page 32).
4. BA's account of what occurred was put to the appellant. Apart from admitting that his hand was under BA's pants the appellant either could not recall or alternatively denied BA's version of events (EROI‑2 pages 36 - 42). However, when one act of digital vaginal penetration was mentioned, the appellant said that he was not saying that it did not happen - he was saying that it did not happen when he was awake (EROI-2 page 39). The extent of what happened was that the appellant found himself with his hand down the front of BA's pants (EROI‑2 page 43).
5. The appellant confirmed that BA went to bed fully clothed (EROI‑2 page 19). The appellant also confirmed that he was aware that BA was menstruating. Earlier that day the appellant had taken BA home to collect some sanitary pads (EROI-2 page 16).

1. Before defence counsel called Dr Claxton to give evidence, the prosecutor raised an issue with the trial judge about whether there was sufficient evidence such that the issue of mistake of fact as to consent should be left with the jury. At that stage, and before hearing argument, the trial judge said that he had some doubts about whether there was a sufficient evidential basis for mistake to be left with the jury.[14]
2. The trial judge heard submissions on the point before the parties' counsel addressed the jury.[15] Defence counsel relied on the circumstance that the complainant, on her own evidence, said 'yes' at some point.[16]
3. In his ruling the trial judge referred to the specific evidence that had been relied on by defence counsel. The trial judge was not satisfied that at its highest, either directly or using inferential reasoning, the complainant's 'yes', in context, was such that there could be a mistake honestly and reasonably held by the appellant that the complainant consented to the acts of touching her breast or sexually penetrating her vagina. Accordingly, the trial judge declined to leave the issue of mistake of fact with the jury.[17]

The parties' submissions on the ground of appeal

The learned trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, because the trial judge declined 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.

1. The appellant submitted that there was an evidential foundation for mistake of fact as to consent within s 24 of the Code such that the trial judge should have directed the jury to give it consideration in the course of their deliberations.[18]
2. The appellant accepted that, ordinarily, the evidential foundation for mistake is the evidence of the accused. However, it was said that may not always be the case. It was contended that there may be an evidential foundation for mistake even though the accused's primary case at trial was that it was reasonably possible that the conduct was unwilled.[19]
3. The appellant said that in this case the complainant's own evidence about what happened on the bed was, of itself, a sufficient evidential foundation for mistake to be left with the jury. The effect of BA's evidence was that nothing was said or done by her (or by the appellant) throughout the course of the interactions that she alleged occurred on the appellant's bed. At no stage did the complainant suggest that she had given any physical or verbal indication that she was not consenting. The asserted evidentiary basis for the issue of mistake to be left to the jury was said to be all the more so when the evidence of the interactions on the bed was considered with the complainant's evidence that the appellant said to her, right at the end of those interactions, that: '[i]f you didn't want it you could've just said so'. The appellant submitted that an inference was capable of being drawn from those words that he had, up to that point in time, been operating under a mistaken belief that the complainant had been consenting to the conduct that had taken place; and it was also open to conclude that there were reasonable grounds for that belief.[20]
4. Thus there were two categories of evidence relied on by the appellant as providing a sufficient evidential basis for the issue of honest and reasonable mistake to have been left to the jury:
   1. Throughout the activity in the bedroom, BA did not say anything, or do anything, that may have indicated to the appellant that she, BA, was not consenting. The appellant relied on BA's lack of physical resistance or verbal objection. There was said to be a continuation of physical contact without any physical resistance or verbal objection.
   2. The conversation between the appellant and BA at the end of the interactions, as recounted at [19] - [20] and [22] above. This was said to be consistent with the appellant honestly and reasonably, but mistakenly, believing that BA had been consenting to the sexual activity.
5. Senior counsel for the appellant submitted that, although the State relied on the appellant's own statements in the police interviews as precluding any belief on the appellant's part as to consent, there was no suggestion by the State in its respondent's answer that BA's evidence (taken alone) was insufficient to support the requisite subjective belief.[21] In this respect, as the jury must be taken to have rejected the appellant's evidence, senior counsel for the appellant submitted that the question of honest belief was exclusively concerned with BA's evidence.[22] In relation to whether there was an evidential basis that the asserted belief was reasonable, senior counsel for the appellant cautioned against usurping the function of the jury.[23]
6. The appellant said that, in deciding that mistake should not be left to the jury, the trial judge's attention was not directed to the evidence in the prosecution case that could support the defence of mistake - namely, the lack of any suggestion that the complainant gave an indication that she was not consenting and the complainant's recollection that the appellant said '[y]ou don't want this, do you? and '[i]f you didn't want it you could've just said so'.[24]
7. The appellant contended that the appeal should be allowed, the judgments of conviction set aside and a new trial ordered.[25]
8. The State answered the appeal by submitting that the appellant's argument relied on a factual scenario which was directly contrary to the appellant's denials and the way he had conducted his defence at trial. According to the State, the denials excluded, as a reasonable possibility, any state of mind consistent with the proposition that the appellant honestly believed (irrespective of reasonableness) that the complainant consented to the impugned sexual acts. In the State's submission, the appellant's exculpatory account of events was positively inconsistent with him holding any belief at all on the subject of consent. According to the State, no inference could be drawn that the appellant believed BA to be consenting where the appellant had given an account denying the existence of any such belief.[26]
9. In this respect, the State relied on R v Baden-Clay.[27] The State submitted that the appellant's proposition that it was open to a jury to accept that an accused person may have honestly held an exculpatory belief, based on other evidence, in circumstances where the accused person denied having any relevant belief, could not be reconciled with Baden-Clay.[28] The State said that, to this extent, this court's decision in Higgins v The State of Western Australia[29] was wrongly decided.[30]
10. In the alternative, the State contended that the evidence at trial, viewed in its entirety, was incapable of discharging the evidential burden as to the reasonableness of any belief that the appellant may have had.[31]

Disposition The operation of s 24 of the Code in the context of offences under s 325 (sexual penetration without consent) and s 323 (indecent assault)

1. Section 24 of the Code provides:
   1. Mistake of fact

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.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

1. Section 24 provides a 'ground of exculpation'[32] rather than, strictly speaking, a defence. It is, however, sometimes convenient to refer to s 24 as providing a 'defence' so far as it is employed as an argument in answer to an allegation that an accused has committed a criminal offence.
2. 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.[33] 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.[34]
3. In the present appeal, the question of mistake of fact under s 24 of the Code is concerned with mistake on the part of the appellant as to whether BA consented to the sexual touching and penetration with which the appellant was charged. 'Consent' means consent freely and voluntarily given.[35]
4. In the context of an offence of sexual penetration without consent, such a 'defence' under s 24 will not arise for determination unless there is, in fact, no consent.[36] Insofar as an absence of consent is also an element of an offence against s 323,[37] the same is true of a 'defence' under s 24 in relation to an offence of indecent assault.
5. Where there is evidence, fit for the jury's consideration, of an honest and reasonable but mistaken belief by the accused that the complainant consented to the relevant sexual touching or sexual penetration, the burden of negativing the issue of criminal responsibility under s 24 rests on the prosecution.[38]
6. In such circumstances the prosecution must prove beyond reasonable doubt that the accused did not honestly and reasonably believe that the complainant consented to the sexual touching or sexual penetration. Accordingly, the jury must acquit if there is a reasonable doubt that the accused honestly and reasonably believed that the complainant consented to the sexual touching or sexual penetration.
7. There is an evidential burden to be satisfied before the trial judge must direct the jury on the issue of criminal responsibility under s 24.[39] To meet that evidential burden there must be evidence upon which the trial judge can properly direct the jury that the issue of criminal responsibility under s 24 is open as a matter of law.[40] In a case such as the present - one where the legal burden is on the State and the evidential burden is on the accused - the relevant question is whether there is evidence which, taken at its highest in favour of the accused, could lead a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that each of the elements of the 'defence' had been negatived.[41]
8. Adapting that to the subject matter of the putative mistaken belief, the question for a trial judge in determining whether the issue of criminal responsibility under s 24 should be left to the jury is whether there is evidence that, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the accused honestly and reasonably believed that the complainant consented to the sexual touching or sexual penetration the subject of the charges.[42]
9. The evidential burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the accused could honestly and reasonably but mistakenly believe that the complainant consented to the sexual touching or sexual penetration.[43]

Evidential basis for reasonable doubt as to honest mistaken belief that BA consented to the sexual activity?

1. Section 24 is not available to exculpate an accused merely because a reasonable person in the position of the accused might have held the requisite belief. An honest belief is concerned with and requires direct or inferential evidence of the accused's actual subjective belief.[44] As has been seen, ordinarily that evidence will be evidence of the accused. But it is established by Higgins v The State of Western Australia that this is not the only way in which the evidential burden may be met such that s 24 mistake of fact as to consent must be left with the jury.
2. Higgins was an unusual case. Among other things, the accused in Higgins, a masseur, was alleged to have indecently assaulted various women by touching their breasts or vaginal areas in the course of a full body massage. One of the complainants was referred to as 'S'. The accused's evidence was positively inconsistent with him having mistakenly believed that S had consented to the alleged acts: he denied engaging in the conduct and accepted that there was no physiological or other justification for massaging a person's breast or groin. This court accepted, however, that a complainant's evidence at trial may provide an evidential foundation for the defence of mistake - and, in Higgins, S's evidence satisfied the evidential burden such that s 24 should have been left with the jury.[45]
3. The approach and decision in Higgins is consistent with two Queensland cases, R v CV[46] and R v Cutts[47] (the latter of which was expressly referred to and relied on by Mazza JA in Higgins).[48]
4. One difference between Higgins and the two Queensland cases is relevant to the appellant's submission that the question of honest belief was exclusively concerned with BA's evidence (see [42] above). In Higgins McLure P observed that it was apparent from the jury's verdicts that the jury positively disbelieved the accused's evidence - which 'must then be put to one side in assessing whether the accused had satisfied the evidentiary burden of raising[49]istake'.49 McLure P's statement that the accused's evidence must be put to one side is consistent with the reasoning process advanced on behalf of the appellant in this appeal. However, the Queensland cases are inconsistent with that approach. They provide, relevantly and in effect, that the determination of whether s 24 mistake should be left to the jury must be considered in light of all the evidence including the accused's evidence which was rejected by the jury - the question being whether operative mistake as to consent is fairly raised on the[50]vidence.50
5. As was said by Jerrard JA in R v Cutts:

[T]here must be some evidence, looking at the case as a whole, of the operative mistake. It has been observed, and I respectfully agree, that fairly cogent evidence from other sources would be required to provide evidence of operative mistake where the best available witness, namely [the accused], disables himself or herself - by an entirely inconsistent and contradictory defence actually advanced - from supporting the evidence of any relevant mistake. This was remarked by Stephenson LJ in R v Bonnick. Further, in R v CV both Williams JA (at [2]) and Jones J (at [39]) held that it is the whole of the evidence, including [the accused's] evidence which has been rejected by the jury, which should be considered when deciding if an issue such as operative mistake is fairly raised on the evidence. That approach requires that when considering the proposition that the possibility of an operative mistake was raised by [the complainant's] evidence, it is necessary to do so in the context that [the accused] not only did not claim a mistake but positively denied the basis on which it could be raised, namely [the complainant's] evidence.[51] (citations omitted)

1. It is not necessary to resolve this difference in the present appeal. As will be seen, the appeal fails for other reasons. In circumstances where the State made no submissions on these different approaches (limiting its opposition to the question of honest belief to an argument based on R v Baden-Clay) it is preferable to leave the point undecided. We will assume - favourably to the appellant and without deciding the point - that in evaluating whether the evidential burden has been met in relation to the question of an honest belief as to consent it is appropriate to proceed conformably with the approach evident in McLure P's statement in Higgins.
2. Senior counsel for the State did not take issue with Higgins so far as it stood for the proposition that, in the context of alleged honest belief, an accused's state of mind may be inferred from evidence other than the accused's direct statements. It was said, however, that such an inference could not be drawn where - as here - the accused had positively disavowed an honest state of mind. In this respect senior counsel for the State relied on R v Baden-Clay.[52]
3. Before turning to R v Baden-Clay, it should be recorded that, to the extent that the State submitted there was no evidential basis for an honest belief as to consent, senior counsel for the State advanced that submission only by reference to what was referred to as the 'Baden‑Clay point'.[53] So, as the appellant submitted (see [42] above), outside of its Baden-Clay point the State did not contend that BA's evidence could not as a matter of law lead a jury to have a reasonable doubt that the appellant honestly believed that BA consented to the sexual activity the subject of the charges. In this respect we accept, consistently with the way that the appeal was argued, that BA's evidence provided an evidential basis whereby it was open to the jury to have a reasonable doubt as to whether the appellant honestly believed that BA was consenting to the sexual touching and penetration. That follows from the statements that BA attributed to the appellant - those statements, arguably, being consistent with the appellant honestly believing at the relevant time that BA had been consenting to the sexual activity. Accordingly, the State's resistance to this aspect of the appeal is determined by whether or not the State is able to make good its Baden-Clay point.
4. In R v Baden-Clay the High Court reversed a decision of the Court of Appeal in Queensland. Mr Baden-Clay was convicted of murdering his wife. At trial Mr Baden-Clay gave evidence that he had nothing to do with his wife's death. Due to the level of decomposition of her body the cause of the wife's death was unknown. The Court of Appeal upheld an appeal on the ground that the verdict was unreasonable having regard to the evidence and substituted a verdict of manslaughter. The Court of Appeal held that the jury could not, acting reasonably, reject a hypothesis (first advanced on appeal) that there was a physical confrontation between Mr Baden-Clay and his wife in which he killed her without intending to cause serious harm. A unanimous High Court held that the hypothesis on which the Court of Appeal acted was not available on the evidence.
5. The High Court stated:

The evidence given in the present case by [Mr Baden-Clay] narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of [his] wife. Not only did [Mr Baden‑Clay] not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.

The Court of Appeal's conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that [Mr Baden‑Clay] killed his wife in a physical confrontation without intending to kill her ...

The Court of Appeal appears to have reasoned that [Mr Baden-Clay's] evidence could be disbelieved by the jury, as it plainly was, so that there was no evidence at all in relation to the hypothesis ... But [Mr Baden-Clay] chose to give evidence. To say that [Mr Baden‑Clay's] evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with [his] innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.[54]

1. In the present appeal, senior counsel for the State particularly relied on the following passage from the High Court's reasons:

The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that [Mr Baden-Clay's] evidence could be disregarded as if it had not been given at all.[55]

1. The present appeal is distinguishable, and should be distinguished, from R v Baden-Clay.
2. First, Baden-Clay is concerned with a different type of inquiry. In Baden-Clay the ultimate question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of murder. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. By contrast, the present appeal is concerned with whether an evidential burden had been met such that s 24 mistake of fact ought to have been left with the jury.
3. Second, and more significantly, factually Baden-Clay is very different to the present case. As is apparent from the second paragraph of the passage from the reasons of the High Court reproduced at [67] above, there was 'no evidence' led at trial that suggested that Mr Baden‑Clay killed his wife in a physical confrontation without intending to kill her. Moreover, given the state of decomposition of the body, once the accused's evidence was rejected the jury was left with the circumstance that the cause of death was unknown. Accordingly, Baden-Clay is a case where the hypothesis identified by the Court of Appeal was not available on the evidence and the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded that possibility. By contrast, in the present case, in deciding whether s 24 mistake of fact ought to have been left with the jury, there was the evidence of BA as to the interactions in the bedroom and the conversation between her and the appellant at the end of the interactions. The present appeal is not one where the putative mistake was not available on the evidence.
4. As to the second matter, it is significant that, unlike Baden-Clay, the evidence which potentially grounds the operation of s 24 comes from a source other than the accused.
5. This is underscored by what was said in Baden-Clay as to the earlier decision of Knight v The Queen.[56] Mr Baden-Clay relied on Knight. In that case the plurality (Mason CJ, Dawson & Toohey JJ) held that the hypothesis that an accused charged with murder did not fire a shot which hit the complainant with intent to kill was open on all the evidence notwithstanding that the jury were entitled to reject the accused's evidence that he was not aware of cocking and discharging the rifle. But, as the High Court explained in Baden-Clay, Knight was 'not a case where the only evidence which raised the hypothesis consistent with an absence of intention to kill came from the accused ... In [Baden-Clay], by contrast, the only evidence which actually related to the hypothesis on which [Mr Baden-Clay] sought to rely was evidence which was inconsistent with that hypothesis'.[57] In this respect the present case is analogous to Knight rather than Baden-Clay.
6. Senior counsel for the State sought to employ the reasoning in Baden‑Clay to establish the proposition that, as a matter of law, an inference of an honest (but mistaken) belief of consent could never be drawn in circumstances where an accused gives an account denying the existence of any such belief.[58]
7. The High Court's reasoning in Baden-Clay does not establish the contended for proposition. The passages relied on are grounded in and address the particular evidentiary context that was presented for consideration in Baden-Clay. Thus, in our opinion, the reasoning in Baden-Clay is to be understood in the particular factual circumstances that prevailed in Baden-Clay. Critical to those factual circumstances was that there was no evidence suggesting the alternate hypothesis identified by the Court of Appeal and the accused gave evidence excluding - thereby in effect disavowing - that hypothesis. The parallel with the latter feature of Baden-Clay may be acknowledged. However, the present appeal is qualitatively different to Baden-Clay in as much as, taking the evidence at its highest, there was evidence from BA which could have led the jury to have reasonable doubt that the appellant honestly believed that BA consented to the sexual activity. In this respect we do not read or understand Baden-Clay to preclude consideration of a defence fairly raised on the evidence simply because it is not raised on (or may be inconsistent with) the defence case. But, necessarily, that is the effect of the proposition contended for by the State so far as it advances the Baden-Clay point.
8. It follows that we do not accept the State's contention that, in part, Higgins was wrongly decided as being inconsistent with the reasoning in Baden-Clay. Higgins was, factually, different to Baden-Clay. Higgins is a case in which the evidence of the complainant (S) provided the evidential foundation to leave the issue of criminal responsibility under s 24 with the jury despite the accused's evidence. In cases such as Higgins the accused's advancement of a defence that is inconsistent with a mistaken belief as to consent may affect the likelihood that the jury will acquit based on s 24. Such forensic realities do not preclude the issue of criminal responsibility under s 24 being left to the jury where there is evidence which, taken at its highest in favour of the accused, could lead the jury to have a reasonable doubt as to whether the accused honestly and reasonably believed that the complainant consented to the sexual touching or sexual penetration.
9. The State's 'Baden-Clay point' fails. On the assumption referred to at [63] above, BA's evidence, taken at its highest in favour of the appellant, left open the reasonable possibility that the appellant honestly believed that BA was consenting to being touched and penetrated in a sexual manner. On that assumption, the jury, acting reasonably having regard to BA's evidence, might fail to be satisfied beyond reasonable doubt that the appellant did not honestly believe BA to be consenting to the sexual touching or sexual penetration the subject of counts 1 and 2.

Evidential basis for reasonable doubt as to reasonable mistaken belief that BA consented to the sexual touching and sexual penetration?

1. The earlier conclusion is not enough for the appellant to succeed in the appeal. Section 24 requires more than a reasonable doubt as to an honest but mistaken belief. The statutory provision is couched in terms of an honest and reasonable but mistaken belief. For the reasons that follow, the evidence at trial, taken at its highest in favour of the appellant, could not lead a reasonable jury, properly instructed, to have a reasonable doubt that the State had negatived the reasonableness of any belief the appellant may have had as to consent. It follows that the trial judge was correct in not directing the jury on s 24.
2. In submitting that there were reasonable grounds for a mistaken belief that BA was consenting to the sexual activity the appellant relied on the circumstance that 'the complainant had not given any indication she was not consenting'.[59] That use of the double negative is telling. In written submissions the appellant's legal representatives were not prepared to go so far as to contend positively that BA had given an indication she was consenting. In oral submissions senior counsel for the appellant said that there was, on BA's evidence, a continued allowance of touching without reaction. Senior counsel relied on there being a number of acts over a long period of time without reaction by BA in terms of physical resistance or verbal objection.[60]
3. Senior counsel for the appellant also argued that, so far as the conversation at the end of the interactions as recounted by BA might have led the jury to have a reasonable doubt about whether the appellant held an honest belief that BA was consenting, that had a bearing on whether there were reasonable grounds for the alleged belief.[61] We reject this submission. Whether a belief is reasonable is a matter for objective evaluation. The circumstance that a mistaken belief is honestly held is not logically probative of the belief being reasonable. A belief may be honestly held without being a reasonable belief. The reasonableness of the alleged belief is not to be equated with the appellant's subjective understanding.
4. Accordingly, in relation to there being a mistaken reasonable belief as to consent, the appellant's remaining suggested evidential foundation for leaving s 24 with the jury is the evidence of BA's lack of physical resistance and lack of verbal objection to continued physical contact on the part of the appellant.
5. That evidence must be considered in the context of the following six matters which were uncontested on the evidence at trial:
   1. The appellant was in a relationship with BA's mother. In that respect BA gave unchallenged evidence that she considered the appellant to be a father figure.[62]
   2. The age disparity between the appellant and BA: the appellant was 63; BA was 17.
   3. BA was menstruating and wearing a sanitary pad - a matter known to the appellant.
   4. The history of the relationship between the appellant and BA was not suggestive of consensual sexual intimacy or a wish on the part of either the appellant or BA to change the relationship to one involving sexual intimacy.
   5. There was limited social interaction between the appellant and BA before BA went to bed. After dinner BA was in the lounge room with the appellant's grandson while the appellant was outside on the patio - pretty much ignoring BA and his grandson.[63] There was no evidence of any interactions between the appellant and BA which might have suggested that BA would be interested in engaging in consensual sexual activity with the appellant or had given her express consent to such activity.
   6. BA wore two layers of clothing to bed: underpants, a T-shirt, tracksuit pants and a jumper.[64]
6. Defence counsel also cross-examined BA on the basis that BA did not want to have sex with the appellant because the appellant was a lot older than BA and was dating BA's mother.[65]
7. Putting to one side, for immediate purposes, the interactions that occurred in the appellant's bed, no aspect of the circumstances indicated by the evidence suggests that BA might have been prepared to engage in consensual sexual activity with the appellant. To the contrary, the matters referred to in [82] - [83] above were inconsistent with any expectation, reasonable or otherwise, that by going to bed in the appellant's bed BA might have been prepared to engage in consensual sexual activity with the appellant.
8. The foregoing is the context in which BA's lack of physical resistance or verbal objection to the appellant's touching is to be assessed. BA's evidence was that the appellant's conduct escalated.[66] BA went to bed in the appellant's bed. The appellant entered the bed just before BA fell asleep. After an hour went by the appellant started to cuddle BA putting his hands around her waist. A few minutes later the appellant put his hands under BA's shirt and started to rub BA's back. Then the appellant put his hands on BA's stomach and breast. The appellant turned BA around and kissed her neck. As BA turned away the appellant put his hand under BA's shirt and then into her pants, rubbing her clitoris with his finger. While, on BA's evidence, digital vaginal penetration later occurred a second time, it is not necessary to consider this further insofar as there was a verdict of not guilty on count 3.
9. While, as has been seen, there was later some conversation between the appellant and BA, BA did not say anything during the interactions referred to immediately above.[67] Nor did the appellant say anything to BA.[68] BA described her body as having frozen and said that all she could do was just lay there.[69] In evidence-in-chief BA denied giving the appellant permission to touch her.[70] BA was cross‑examined on the basis that the appellant did not ask to touch her.[71] BA accepted, in cross-examination, that she did not tell the appellant to stop,[72] that she did not try to resist,[73] and that the first time that BA indicated that the interactions were unwanted, the appellant stopped.[74]
10. Critically, there was no evidence of any reciprocation or engagement by BA during the interactions on the appellant's bed. BA did nothing to encourage or participate or otherwise join in any sexual activity or even the interactions in general.
11. In the circumstances of this case, BA's lack of physical resistance and lack of verbal objection to the appellant's continued and escalating sexual touching and penetration could not provide any reasonable basis for a belief that BA was consenting to the sexual touching and penetration. The only reasonable conclusion on the version of events most favourable to the appellant was that any belief that BA consented to the appellant touching her breast and consented to the appellant digitally penetrating her vagina was unreasonable.
12. There is a fundamental difference between consent to sexual intimacy which is freely and voluntarily given and mere lack of physical resistance or verbal objection to sexual touching or sexual penetration. Consistently with that distinction, s 319(2)(b) of the Code provides that a failure by a person to offer physical resistance does not itself constitute consent to an act which, if done without consent, would be an offence against ch XXXI of the Code.
13. Moving from the general to the specific, nothing in the evidence at trial rose above the level of mere lack of physical resistance or verbal objection to sexual touching or sexual penetration. In the circumstances of this case as summarised at [82] - [87] above, it was not open for the jury, acting reasonably, to conclude that any belief that BA consented to the sexual touching or sexual penetration might have been reasonable. On the version of events most favourable to the appellant, BA's lack of physical resistance and lack of verbal objection could not reasonably be interpreted to indicate that BA was consenting to the sexual touching or sexual penetration. In the circumstances of this case any other conclusion would be to elevate what was mere lack of physical resistance or verbal objection to the equivalent of positive conduct on the part of a 17-year-old girl consenting to sexual touching and penetration by the 63-year-old boyfriend of her mother. It would do so in a context where no aspect of the evidence supported the proposition that BA might be prepared to engage in consensual sexual activity with the appellant and in circumstances where there was no evidence that BA reciprocated or otherwise joined in the interactions as occurred in the appellant's bed. It would do so in circumstances where the appellant took no steps - let alone reasonable steps - to ascertain whether BA consented to sexual touching or sexual penetration. The appellant said nothing to BA before initiating sexual activity.
14. This is not a case where a reasonable jury, properly instructed, might fail to be satisfied beyond reasonable doubt that any belief by the appellant that BA was consenting to the sexual touching and penetration was unreasonable. In the circumstances of this case BA's lack of physical resistance and lack of verbal objection could not lead a reasonable jury, properly instructed, to have a reasonable doubt as to the unreasonableness of any belief the appellant may have had that BA consented to the charged sexual touching or sexual penetration.
15. The appellant's single ground of appeal fails.

1. The appellant's single ground of appeal had a rational and logical prospect of succeeding. There should be leave to appeal on the ground of appeal. However, as the ground fails, the appeal must be dismissed.
2. We would make orders that:
   1. The appellant has leave to appeal on his single ground of appeal.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] See GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183, 187 (Burt CJ).

[4] See Pearce v Stanton [1984] WAR 359, 363 (Rowland J).

[8] Appellant's submissions par 25 WAB 11.

[16] ts 234 - 237. This was a reference to what was said in the VRI as reproduced at [20] above.

[18] Appellant's submissions pars 27, 31 WAB 11, 13.

[19] Appellant's submissions par 26 WAB 11.

[20] Appeal ts 7 - 11, 16 - 18; Appellant's submissions pars 24, 26 - 31 WAB 10 - 13.

[24] Appellant's submissions pars 15 - 24, WAB 8 - 11.

[25] Appellant's submissions par 34 WAB 14.

[26] Appeal ts 19, 21 - 24; Respondent's submissions pars 1 - 2, 7 - 15, 18 - 19 WAB 18 - 22.

[27] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47] - [52], [58].

[28] Respondent's submissions par 19 WAB 22.

[29] Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474.

[31] Appeal ts 18, 24 - 25; Respondent's submissions pars 3, 20 - 29 WAB 18, 22 - 25.

[32] See CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8].

[33] WCW v The State of Western Australia [2008] WASCA 232 [10]; Higgins v State of Western Australia [28].

[34] See Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [43]; WCW v The State of Western Australia [122].

[36] WCW v The State of Western Australia [7].

[37] Code s 1(1), s 222 (the definition of 'assault'). See also Higgins v The State of Western Australia [106].

[38] CTM v The Queen [8], [35]; WCW v The State of Western Australia [8]. See generally Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [32].

[39] CTM v The Queen [8], [35]; Higgins v The State of Western Australia [23].

[40] Braysich v The Queen [17], [35].

[41] Braysich v The Queen [17], [36]; Narkle v The State of Western Australia [2011] WASCA 160 [41].

[42] Narkle v The State of Western Australia [2]; Higgins v The State of Western Australia [24].

[43] Higgins v State of Western Australia [25].

[44] Narkle v The State of Western Australia [3]; Higgins v The State of Western Australia [82].

[45] Higgins v The State of Western Australia [29], [95] - [97], [100], [165]. See also [82], [89]. It should, however, be noted that Mazza JA concluded that there was no evidentiary basis for the defence of mistake on some of the counts.

[46] R v CV [2004] QCA 411 [1], [4], [39].

[47] R v Cutts [2005] QCA 306 [4], [48], [74] - [75].

[48] Higgins v The State of Western Australia [82] - [90].

[49] Higgins v The State of Western Australia [27].

[50] R v CV [2], [39]; R v Cutts [41], [75].

[51] R v Cutts [75]. Jerrard JA dissented in part in R v Cutts. However, his Honour did so on the facts in a way that does not affect the principle stated in the passage as reproduced above.

[54] R v Baden-Clay [54] - [55], [57].

[56] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495.

[58] Appeal ts 20 - 23; Respondent's submissions par 19 WAB 22.

[59] Appellant's submissions par 30 WAB 12.

[66] See generally VRI pages 5 - 11, 13 - 16 BGAB 92 - 98, 100 - 103.

[68] VRI page 21 BGAB 108; ts 44 - 45, 49, 56.