//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] ACTCA 15
respondent. Leave was granted under r 5412(2) to rely on the amended ground. Leave under r 5531 to rely on a ground concerning directions unchallenged at trial was refused. The appeal was dismissed: [50].
The Court of Appeal dismissed Ware's appeal against two convictions for sexual intercourse without consent. It held that the law did not require Ware to prove that he took steps to check for consent. The prosecution always carried the burden of proving the offence, including the relevant fault element. The jury had been told to acquit if Ware's account might reasonably be true, and the Court considered that direction sufficient in the circumstances. The Court also cautioned that extreme hypotheticals about consent can distract juries. Because no objection or request for redirection had been made at trial, and no error was established, leave to rely on the new appeal ground was refused.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,203 words · generated 05/10/2026
In Ware v DPP [2025] ACTCA 15, the ACT Court of Appeal considered a proposed appeal ground about jury directions on consent and reasonable belief in consent. Joshua Ryan Ware had been convicted by a jury of two offences of engaging in sexual intercourse without consent, contrary to s 54(1) of the (ACT). The alleged acts occurred on 6 January and 28 January 2023 [1]-[2].
3 cited instruments linked from this judgment.
The complainant and Ware gave materially different accounts of the encounters. According to the complainant, she did not consent on either occasion and did not say or do anything to communicate agreement. She also said Ware did not say or do anything to ascertain consent [10]. Ware's account was that the complainant engaged in sexual activity, including rubbing against him, assisting with the removal of clothing, agreeing to move to his bedroom, and participating in sexual activity [12]-[18]. Thus, the dispute was not whether intercourse occurred, but what happened around it and whether the complainant consented [36]-[39].
Ware's original notice of appeal alleged that the verdicts were unsafe and unsatisfactory. He did not pursue that ground at the appeal hearing [4]-[5], [9]. Instead, he sought leave to add a ground alleging that the trial judge failed to explain the requirement that an accused did not “say or do anything to ascertain whether the other person was consenting” [6]. No objection had been made to the directions at trial, and trial counsel did not request a redirection [7], [22].
The Court made two distinct procedural decisions. It granted leave to amend the notice under r 5412(2) of the Court Procedures Rules 2006 (ACT), but refused leave under r 5531 to rely on the unobjected-to direction ground. It dismissed the appeal [49]-[50].
The Court first rejected the appellant's proposed interpretation of ss 67(4) and (5) of the Crimes Act. Those provisions address the reasonableness of a belief that another person consented. Section 67(4) says that an accused is taken to know the other person did not consent if any belief that the person consented is not reasonable in the circumstances. Section 67(5) provides that a belief is taken not to be reasonable if the accused did not say or do anything to ascertain whether the other person consented [31].
Ware argued that s 67(5) placed an evidentiary onus on him to identify something he said or did to ascertain consent. On that reading, once he met that onus, the prosecution would have to prove beyond reasonable doubt that he had not done so [23]-[26]. The Court rejected that characterisation. It held that the provisions were not a defence and did not shift a burden onto the accused. The prosecution retained the onus of establishing the relevant fault element throughout, including that the accused knew or was reckless about the complainant's lack of consent, or that any belief in consent was not reasonable [33]-[35], [40].
The Court also rejected the suggestion that the judge needed to give the jury a formula for deciding what words or actions would satisfy s 67(5). The provisions leave the reasonableness question open-textured. It is for the jury to decide in the individual case by reference to community standards and all the circumstances. In the Court's view, a trial judge would have erred by listing particular words or conduct as sufficient to establish reasonable belief [42]. The Court referred in this context to Langi v The Queen [2023] ACTCA 38 at [8]-[9] [42].
The directions were assessed in light of the case actually tried. The accounts were diametrically opposed. The complainant said she did not consent and that Ware did not ascertain consent. Ware described conduct which, on his account, could indicate consent [36]-[39]. The prosecution did not invite the jury to convict if it thought Ware's version was true or might be true [39].
The trial judge gave a direction based on Liberato v The Queen [1985] HCA 66; 159 CLR 507: the jury had to acquit if it believed Ware's evidence or thought it might reasonably be true. The judge also directed the jury consistently with R v Murray (1987) 11 NSWLR 12 that it could not convict unless satisfied beyond reasonable doubt of the complainant's credibility and reliability [41]. The Court held those directions addressed the competing accounts and the burden of proof. In the circumstances, no additional direction was necessary [41]-[42].
The Court noted that Ware's rhetorical questions about whether his evidence was sufficient, what standard applied, and how the jury should assess it were answered by the Liberato direction [45]-[46]. The jury did not have to determine whether Ware had discharged an evidentiary burden, because the Court held there was no such burden.
Finally, the absence of an objection mattered. The Court treated the absence of a redirection request as a “cogent indication” that trial counsel perceived the jury had been properly instructed [47]. Considering that circumstance alongside its finding of no error, the Court refused leave under r 5531 [47]-[50].
The judgment describes the relevant statutory provisions as having been introduced by the Crimes (Consent) Amendment Bill 2022 (ACT), which came into effect on 12 May 2022 [32]. The Explanatory Statement, as reproduced in the judgment, says ss 67(4) and (5) introduce a hybrid objective and subjective test and remove the principle associated with the Morgan defence. It describes s 67(4) as requiring an objective assessment of whether a belief in consent was reasonable in the circumstances, and s 67(5) as requiring steps to ascertain consent for a belief to be reasonable [32].
The Court's contribution in Ware is not to set out a general list of steps, words, or conduct that will satisfy s 67(5). Instead, it clarifies two points relevant to jury directions. First, the provision does not put an evidentiary onus on the accused. The prosecution retains the burden throughout [33]-[35], [40]. Second, the reasonableness question is deliberately open-textured and belongs to the jury, applying community standards to the facts and circumstances of the particular case [42].
The judgment therefore places the statutory inquiry within the ordinary structure of the criminal trial burden. It does not direct juries to treat an accused person's assertion of belief as sufficient, nor does it require an accused to prove that the belief was reasonable. Rather, the prosecution must establish guilt beyond reasonable doubt, and the jury must consider the evidence under directions that preserve that burden [33], [41].
The decision also gives practical guidance about how much elaboration is required where the factual accounts are sharply opposed. Here, the judge's direction that the jury must acquit if Ware's account might reasonably be true was considered sufficient, in the context of the whole summing-up and the evidence [41]-[46]. The Court did not establish that such a direction will always be enough in every case. Its conclusion was expressly tied to the circumstances before it.
At [33], the Court said the prosecution's onus “remains on the prosecution at all times”. In plain English, the accused does not acquire a legal or evidentiary burden to prove that they checked for consent. The Crown must prove the offence, including the relevant fault element.
At [34], the Court rejected the argument that the accused “bears an evidentiary onus”. The significance is that the jury should not be directed to require the accused to prove that particular words or actions occurred before it can consider the prosecution's case.
At [42], the Court characterised reasonableness as an “open-textured question” for the jury, determined “in each individual case” by reference to community standards. In plain English, the statute does not provide a checklist of phrases or actions that automatically make a belief reasonable. The jury considers the whole setting, under legal directions, rather than applying a judge-made list.
At [43], the Court warned that a hypothetical can risk distracting the jury from the facts. It said that where further explanation is needed, the safer course is to remind jurors of the particular matters raised in the parties' submissions. The Court did not find that the hypothetical in this case caused an appealable error. It addressed the risk in general terms and then explained that this particular extreme example could only have operated to the prosecution's prejudice [43]-[44].
At [41], the judge's direction that jurors “must acquit” if Ware's version might reasonably be true is central to the result. The Court considered it adequately protected the accused against conviction where the jury had a reasonable doubt about the complainant's account.
At [47], the Court described the absence of a request for redirection as a “cogent indication” that counsel considered the jury properly instructed. That was not treated as a substitute for deciding whether an error occurred. It was relevant to the procedural question under r 5531, alongside the Court's assessment of the directions and the trial record.
The decision is most directly relevant where a sexual-offence appeal alleges that a trial judge inadequately directed a jury about s 67(4) or s 67(5) of the ACT Crimes Act, particularly where the proposed argument assumes the accused has an evidentiary burden to show they said or did something to ascertain consent. Ware rejects that assumption [33]-[35].
It is also relevant where the defence and prosecution give competing accounts of whether the complainant communicated agreement, and the trial judge directs the jury to acquit if the accused's version might reasonably be true. The Court assessed the directions against the specific conflict in the evidence and held that the direction, together with the other instructions, was sufficient here [36]-[42].
The case may be especially pertinent when a party argues that the trial judge had to identify particular conduct that would meet the statutory standard. The Court says the question is for the jury and is not to be resolved through a judicial list of qualifying words or actions [42]. The judgment does not establish that no further directions will ever be required. It concludes only that further instructions were unnecessary in this trial, given the issues, evidence, summing-up, and prosecution's position [39]-[42].
The decision also concerns appeals based on a failure to direct where no objection was taken at trial. It records the significance of r 5531 and the absence of a request for redirection [7], [22], [47]-[50]. The judgment may therefore be relevant to appellate applications seeking leave to raise a direction issue for the first time, especially where the proposed error is not established on examination of the summing-up.
The judgment was delivered on 23 May 2025. The material provided for this analysis contains no later decisions applying, distinguishing, or otherwise treating Ware v DPP [2025] ACTCA 15. Its subsequent treatment therefore cannot be identified from this judgment alone.
Within its own reasoning, the Court referred to Hudson v DPP [2024] ACTCA 28 at [122]-[123] for the significance of trial counsel not seeking a redirection. It also referred to Langi v The Queen [2023] ACTCA 38 at [8]-[9] when explaining why a judge should not attempt to list particular words or conduct that would satisfy a reasonable belief in consent [42], [47]. These are authorities relied on by the Court, not later treatments of Ware.
The judgment does not identify a complete set of words or actions that amount to taking steps to ascertain consent. Indeed, it says the statute leaves reasonableness open-textured and for the jury [42]. How different kinds of interaction bear on the question therefore remains fact-dependent in the terms of this decision.
The judgment does not decide what directions would be required where the accused's account, even if accepted, does not clearly address whether they said or did anything to ascertain consent. Nor does it decide how a judge should direct a jury where the prosecution argues that particular conduct does not constitute ascertaining consent, or where that issue is a central and separately contested factual question. Its holding is that the directions in this case were sufficient, given the competing accounts and the Liberato direction [36]-[46].
The Court cautioned against hypothetical examples but did not rule that they are always improper. It said they risk distraction and identified a safer course for further explanation [43]. The status of a hypothetical in another case would depend on its content, the context in which it is used, any objection, and its effect on the trial as a whole. In Ware, the appellant did not challenge the hypothetical, and the Court considered that it could not have operated unfairly against him [44].
Finally, the judgment does not settle the procedural treatment of every unobjected-to direction ground under r 5531. It records that the absence of a redirection request was a cogent indication in the circumstances and refuses leave after finding no error [47]-[50]. The case's procedural result should therefore be read together with its specific trial record and the rule's stated requirement concerning an objection.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Ware v DPP Citation: [2025] ACTCA 15 Hearing Date: 8 November 2024 Decision Date: 23 May 2025 Before: Loukas-Karlsson, Baker and Taylor JJ Decision: See [50]. Catchwords: CRIMINAL LAW – Appeal against conviction – adequacy of primary judge’s directions to jury on consent – where no objection to directions at trial – reasonableness of an accused person’s belief as to consent – use of hypothetical example in directions to jury – application for leave to appeal under r 5531 of the Court Procedures Rules 2006 (ACT) is refused – appeal dismissed Court Procedures Rules 2006 (ACT), rr 5412(2), 5531 Legislation Cited: Crimes Act 1900 (ACT), ss 54(1), 67 Supreme Court Act 1933 (ACT), s 37O(3) Cases Cited: Alford v Magee (1952) 85 CLR 437 DPP v Ware [2024] ACTSC 52 Hofer v The Queen [2021] HCA 36; 95 ALJR 937 Hudson v DPP [2024] ACTCA 28 Langi v The Queen [2023] ACTCA 38 Liberato v The Queen [1985] HCA 66; 159 CLR 507 R v Murray (1987) 11 NSWLR 12 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Texts Cited: Explanatory Statement, Crimes (Consent) Amendment Bill 2022 (ACT) Parties: Joshua Ryan Ware (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel R Thomas (Appellant) K McCann (Respondent) Solicitors Kim Bolas Legal Group (Appellant) Director of Public Prosecutions (Respondent) File Number: ACTCA 4 of 2024 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Berman AJ Date of Decision: 1 December 2023 Case Title: DPP v Ware Citation: [2024] ACTSC 52 THE COURT: Introduction
The appellant, Joshua Ryan Ware, was tried before a jury in relation to two counts of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The offences were alleged to have been perpetrated against the appellant’s neighbour (the complainant) on 6 January 2023 and 28 January 2023, respectively.
On 4 December 2023, the jury returned verdicts of guilty in respect to both counts.
On 28 February 2024, Berman AJ (the primary judge) sentenced the appellant to three years’ imprisonment for each offence, cumulative as to one year, resulting in a total aggregate sentence of four years, with a non-parole period of three years: DPP v Ware [2024] ACTSC 52 (the sentence judgment).
On 20 March 2024, the appellant filed a Notice of Appeal against the conviction. That notice provided for a single ground of appeal as follows: That the decisions on the two charges of “sexual intercourse with consent” are unsafe and unsatisfactory having regard to the evidence.
The appellant filed an amended Notice of Appeal on 2 May 2024, which did not alter the ground of appeal relied upon.
On 17 October 2024, the appellant filed an application in proceeding seeking leave pursuant to r 5412(2) of the Court Procedures Rules 2006 (ACT) (the CPR) to amend the Notice of Appeal to add a new ground as follows: That the learned judge erred in law in directing the jury in that he failed to direct the jury as to the meaning of the phrase / requirement that the accused ‘did not say or do anything to ascertain whether the other person was consenting’ and in particular, he did not direct the jury on the accused’s case and the evidence relevant to that issue.
Rule 5531 of the CPR provides that a ground of appeal relating to the failure to give a direction must not be allowed unless objection was taken at trial by the appellant. As there was no objection to the directions given by the primary judge concerning this issue at any stage during the trial, the appellant was required to seek leave pursuant to r 5531 to rely upon this proposed amended ground of appeal. The appellant contended that such leave should be granted because s 67(5) of the Crimes Act (which concerned the reasonableness of the accused’s belief as to consent), was “a new and complex provision”, such that “a further direction was not apparent at the time of trial”.
Counsel for the respondent, whilst opposing both the grant of leave to permit an amendment of the Notice of Appeal and the grant of leave under r 5531, appropriately accepted that the question of leave ultimately turns on the merits of the appeal and thus the issue ought to be determined as part of the appeal itself.
At the hearing, the appellant did not press the original appeal ground which alleged that the verdicts were “unsafe and unsatisfactory” having regard to the evidence. Accordingly, the amended ground of appeal is the only ground that remains for this Court’s determination.
Background
The prosecution case
A summary of the prosecution case is conveniently set out in the sentencing judgment of the primary judge as follows: 1. In 2022, the victim in this matter, a woman who I will give the pseudonym “Sarah Bright”, was a single mother caring for her two children. She had had some problems with drugs in the past, but as at 28 December 2022, she had been clean for a while. I give her a pseudonym not to depersonalise her, but to protect her privacy. 2. That evening, her children were staying with her mother, so she contacted a neighbour of hers, the offender in this matter, Joshua Ware, to see what he was doing. He was going fishing with his cousin's partner and invited Ms Bright to join them. As well as trying to catch fish, the three of them consumed methylamphetamine. It was not long before Ms Bright redeveloped a dependency to that drug. 3. Thereafter, she and the offender spent time together consuming drugs which were usually supplied by the offender. He developed feelings towards Ms Bright. He made that obvious, but she did not reciprocate. 4. On 6 January 2023, the two of them were in Ms Bright's home. They consumed methylamphetamine together and fell asleep on a couch in her loungeroom. Around dawn that day, she woke up but felt unable to move. The offender was behind her. He pulled her pants and underwear down and engaged in penile/vaginal intercourse with her [Count 1: sexual intercourse without consent]. Ms Bright neither said nor did anything to indicate that she was consenting to this happening. The offender ejaculated inside her whilst not wearing a condom. 5. A few days later, Ms Bright made a note on her mobile phone in which she described the circumstances in which that sexual intercourse occurred. Thereafter, she continued to associate with the offender. He would buy her gifts and express his feelings for her but from her point of view, their relationship revolved around the use of drugs. Further acts of sexual intercourse occurred, Ms Bright saying that each of those were without consent. 6. The final occasion on which they had sex was 28 January 2023. The offender invited Ms Bright to his home where they consumed methylamphetamine together. They were seated on a couch. The offender began moving towards Ms Bright, who moved away from him. He picked her up, carried her to his bed, removed her pants and commenced penile/vaginal intercourse with her [Count 2: sexual intercourse without consent]. At one stage, he told her to get on top of him. She did what he asked because she was afraid of him. Eventually he, as before, ejaculated inside her whilst not wearing a condom. Once again, she neither said nor did anything to indicate that she was consenting to what was happening. 7. A few days later, Ms Bright spoke to officers from Housing ACT. She had previously made an application to be moved because her ex-boyfriend knew where she lived, and she was afraid of him. When she checked up on how her application was going on this occasion, she told them that she had been raped by the offender, one of her neighbours. 8. Police were called. Ms Bright participated in two interviews with them and ultimately, the offender was charged with two offences of having sexual intercourse with Ms Bright without her consent. One relating to the first occasion on which they had intercourse, and the other relating to the final occasion. The appellant’s account Record of interview
The appellant’s evidence at trial
The appellant gave evidence at trial. The appellant’s evidence was generally consistent with his record of interview. He maintained that each act of sexual intercourse was consensual.
In relation to the incident on 6 January 2023, the appellant stated that after using methamphetamine, he and the complainant had fallen asleep in a “spooning position” on the couch. He said that they both woke up at approximately 6am and that the complainant commenced “rubbing up against [him]”, which, he explained, meant that she was rubbing her bottom against his crotch. He then began rubbing her legs. The appellant said that he interpreted the complainant’s actions as meaning that she was interested in having sexual intercourse. He began rubbing her “vagina area” and he removed her pants. He stated that he pulled the complainant’s pants down and that she assisted him by lifting herself up. The appellant gave evidence that the complainant was lying on her back on the couch, he moved over the top of her, she lifted her legs up and he “put [his] penis in her vagina”. He stated that they continued having sexual intercourse for “maybe about half an hour”.
In relation to the incident on 28 January 2023, the appellant stated that, after smoking methamphetamine, he and the complainant were seated together on his couch. The appellant said that he “started rubbing her leg” and the complainant then moved towards him and they “cuddled for a minute”. The appellant gave evidence that he was unable to recall specific details but they “somehow ended up having sex” on the couch. He suggested to the complainant that they move to his bed and “she said yes”. He then asked her if she wanted him to carry her and she replied “okay”. The appellant specifically recalled that he believed his “left hand was under her back… and [his] right hand was under her legs”. He stated that as he carried her to his bedroom, they “had a bit of a giggle” as he was struggling to carry her. He gave evidence that he placed the complainant “in the middle of the bed, she raised her legs” and “[he] got on top”. They resumed having penile vaginal intercourse until he “started to get a cramp”. The appellant recalled suggesting that they change sexual positions and that she “hop on top”, to which she agreed. He stated that the complainant was “riding [him]” and they were both making “arousal sounds”.
The appellant said that he believed the complainant was consenting on all occasions they had sexual intercourse because “she never said no. She never pushed me away at any time. I never forcefully made her do anything that she didn’t want to do”. He also stated that she did things which implied consent such as assisting him to remove her pants, rubbing his crotch with her bottom and replying “yes” when he asked if she wanted to move into his bedroom.
In cross-examination, the appellant stated that he had performed oral sex on the complainant prior to having penile vaginal intercourse with her on 6 January 2023.
The directions given by the primary judge
The primary judge’s directions in relation to the appellant’s evidence were as follows: Now, let me speak about Mr Ware giving evidence to you yesterday. You’ve been told he didn’t have to do that; quite right, members of the jury. He did not have to give evidence. There is no obligation on an accused person to give evidence at his or her trial. An accused person is entitled to remain where they are, not enter the witness box, and to make the prosecution prove its guilt if -prove his or her guilty if it can (sic). But Mr Ware did give evidence and his evidence should be treated like every other witness. Just because he got in the witness box, he wasn’t taking on some burden of proving that what he is saying is true. He doesn’t have to prove that his version is true before you can find him not guilty. He doesn’t even have to prove that his version of events is reasonably possible. Before you can convict the accused, it’s the prosecution who has to prove things. It’s the prosecution who has to prove to you that what Mr Ware said in his evidence is not a reasonably possible version of events. And it’s not enough for you to convict Mr Ware that you might prefer the version given by [the complainant] to the version that he gave. It’s not a case where you weigh up the two versions and say, ‘Which is more likely? Which sounds more believable?’ you can’t convict him unless you are satisfied beyond reasonable doubt of the truth and accuracy of the version of events given by [the complainant]. Now, when you analyse it, if you believed what Mr Ware said to you in evidence, then you’d have to acquit him. If you believed that he was telling the truth, and, of course, the immediate response is that he’s not guilty of these two charges; but that also applies if you think ‘I’ve got a bit of difficulty accepting what he said but I think it’s reasonably possible it’s true.’ If you think that, you’ve got to acquit him too. If what he says is a reasonably possible version of events, then it can’t be the case that the prosecution has proved [the complainant]’s version of events beyond reasonable doubt. So you must acquit Mr Ware if you believe what he says. You must acquit him if you think what he says might reasonably be true. But what happens if you say to yourself, ‘I can’t believe a word Mr Ware said.’ Well, if that’s the case, you just put his evidence to one side. It does not automatically follow from you saying, ‘I don’t believe a word Mr Ware said’ that he is guilty. If that’s your conclusion about what Mr Ware said, you simply put his evidence to one side and look at the evidence that you do accept and decide whether the prosecution has proved he is guilty beyond reasonable doubt. In making that assessment, in answering that question, ‘Has the prosecution proved beyond reasonable doubt.’ If you don’t believe what Mr Ware said to you in evidence, you just ignore it and you look at the remaining evidence in answering that question.
The primary judge’s directions in relation to consent were as follows: Now, the prosecution has to prove that [the complainant] did not consent to that sexual intercourse, and then looking at the question of consent, you would, of course, look at the definition I have given you on the final page of that document. [The complainant] consented to sexual intercourse with the accused if she gave informed agreement to that sexual act, that agreement was given freely and voluntarily, and she communicated her agreement by saying or doing something. And then, [the complainant] would not have consented to sexual intercourse with the accused only because she did not say or do anything to resist the act, or she had previously consented to having sexual intercourse with the accused. Well, that one doesn’t really apply to count 1 because this is the first time they had had sexual intercourse, but there is another one that we could add there, members of the jury, and I should have added it. A person is also not to be regarded as having consented to a sexual act just because she did not sustain a physical injury. So we could add that one down as (c) on that page there … So, members of the jury, it was [the complainant]’s evidence that she did not agree. She did not give any agreement, let alone an informed agreement to the accused putting his penis into her vagina. It was her evidence that she did nothing to suggest any agreement to that happening. She did not communicate her agreement by saying or doing something in the terms of that document I have given you. So when you look at that definition I gave you, if you accept her evidence beyond reasonable doubt, that means she did not consent to the accused having sexual intercourse with her. And in fact, her evidence was that she was incapable of saying anything or doing anything to resist what the accused was doing. But as I have made clear to you, the fact that the person does not say or do anything to resist an act of sexual intercourse does not mean that she must have consented to it. In fact, it’s the other way around. Before a person can be said to have consented to a sexual act, as I have written down there, 1(c), she has to have communicated her agreement by saying or doing something. And it was [the complainant’s] evidence that she said and did absolutely nothing. So if you accept her evidence regarding the circumstances in which the accused had sex with her on the sofa beyond reasonable doubt, in particular, if you accept that she said or did nothing, and she did not consent, then you would find this element proved and you would move onto the next element, which is the third element the prosecution has got to prove. On the other hand, if you were to find that the accused’s version, Mr Ware’s version is a reasonably possible version of what actually occurred, then you would find that the prosecution has not satisfied you of this element and therefore you would find him not guilty on this count. So if you say to yourself, ‘Look, it’s reasonably possible that [the complainant] did consent to sexual intercourse, as evidenced by her rubbing her buttocks against his penis and helping him remove her pants’, if that’s a reasonable possible version of events, then you would find that the second element has not been proved beyond reasonable doubt and the result of that is that you would then find Mr Ware not guilty. And as with all issues that come up of this kind, it’s not a case of whose case sounds better or which version of events sounds more believable. You could only convict Mr Ware on count 1 and both counts, really, if the prosecution satisfied beyond reasonable doubt that what [the complainant] said was both honest, in the sense that she believed it was true and accurate in the sense that it really is what happened in her living room that night or early that morning, I suppose. Okay. So what happens if you are satisfied beyond reasonable doubt of the second element? Well, as I have said, we move onto the third. Now, the first thing I have to say to you about this third element is the prosecution can prove it in one of four ways. It doesn’t have to prove all of those four dot points. Any one is enough. All the prosecution has to do to satisfy you for the third element is to prove any one of those four dot points. And let’s go through them one by one. They’re pretty straight forward, but I will say a few things about them. The first way that the prosecution can prove this third element is if it proves that Mr Ware knew that [the complainant] was not consenting to sexual intercourse. Well, you might say to yourselves, ‘How are we supposed to know what he knew? We’re not mind readers.’ Well, let me tell you, members of the jury, that there is nothing unusual in what you’re being asked to do. Almost every criminal offence that you can think of requires a jury to consider what a person believed or knew or understood. So when I say to you, you have to examine what Mr Ware’s state of mind was, I am not asking you to do anything unusual in that at all. The first point, the first dot point is satisfied if the prosecution proves that Mr Ware knew that [the complainant] was not consenting to sexual intercourse and when I say Mr Ware, of course I mean Mr Ware. It’s Mr Ware over there. His state of mind that you examine in considering whether the prosecution has proved that he knew [the complainant] was not consenting to sexual intercourse. The second way the prosecution can prove this third element is this. The prosecution could prove that Mr Ware realised that there was a possibility that [the complainant] was not consenting to sexual intercourse, but he went ahead anyway. Again, it’s what Mr Ware realised which is important here. Did he realise there was a possibility that [the complainant] was not consenting to sexual intercourse, but he had sexual intercourse with her anyway. The third way, the third dot point would be satisfied by the prosecution if the prosecution proved beyond reasonable doubt that Mr Ware didn’t even think about whether [the complainant] was consenting to sexual intercourse. That is, he didn’t care whether she was consenting or not. In circumstances where the risk that she was not consenting would have been obvious to someone with Mr Ware’s mental capacity, had he turned his mind to it. … And then the fourth way that the prosecution can prove this third element is a bit different to the first three. The first three require you to think about what was going on in Mr Ware’s mind They require you to look at what was going on in the mind of the accused. But the fourth dot point is a bit different. What do you do if you think it’s reasonably possible that Mr Ware actually believed [the complainant] was consenting to sexual intercourse. What do you do if you think, ‘Well, maybe Mr Ware actually did believe that [the complainant] was consenting to sexual intercourse’ so you think it’s reasonably possibly that he had that belief. Well, if that’s your conclusion, you couldn’t find in favour of the prosecution on any of the first three dot points. But it’s not the end of the matter because the fourth dot point is there. It arises where you think it is reasonably possible that Mr Ware believed that [the complainant] was consenting to the sexual intercourse and the prosecution proves this fourth dot point if it proves that he had no reasonable grounds for any belief that [the complainant] was consenting to sexual intercourse. Another way of saying the same thing is that this dot point is proved if any belief that the accused had that [the complainant] was consenting was not a reasonable belief in the circumstances. Of course, if he had that belief, it would still not be a reasonable one if he did not say or do anything to ascertain whether [the complainant] consented. Now let me give you an extreme example of what this fourth dot point’s all about. I want you to assume that a man is having sex with a woman who is yelling out, ‘Stop’ loudly to him, who is struggling, who is screaming, who is crying, who is calling out for help. Now it’s hard to imagine how anyone could but even if that man actually believed that that woman was consenting to having sexual intercourse with him, a jury might well find that he did not have any reasonable grounds for that belief. You understand? If there’s some strange man around and he actually believed that a woman he was having sex with who was yelling out, ‘Stop’, struggling, screaming, crying and calling out for help, if that man actually did believe that the person he was having sex with was consenting, a jury might well find that he did not have any reasonable grounds for that belief and so if he was facing trial the jury would just find probably that fourth dot point satisfied by the prosecution. Now I’m certainly not suggesting that a woman would have to do all those things before a jury could find that the man did not have reasonable grounds for believing she was consenting and, in fact, as I’ve already made clear, the fact that a person does not say or do anything to resist an act of sexual intercourse does not mean that she must have consented to it, so I’m only using that extreme example to illustrate what this fourth dot point is all about. Further, unless that man said or did something to ascertain whether the woman was consenting, any belief by him that she was consenting would not be a reasonable one. The law specifically provides this, members of the jury. The law specifically provides that a person’s belief that another person was consenting to sexual intercourse cannot be a reasonable one where the person did nothing or said nothing to find out whether the other person was consenting. Now, members of the jury, I know what I’ve said about these elements can be complicated. I know there’s a lot of things I’ve said which might be difficult to understand so please remember that one of your duties is to apply the legal principles that I have been telling you about but you can only do that if you understand what I have said about these legal principles.
Determination
Section 67 of the Crimes Act
Subsections 67(4) and (5) of the Crimes Act provide as follows concerning the reasonableness of an accused person’s belief as to consent: 67 When a person does not consent to an act … (4) An accused person is taken to know that another person does not consent to an act mentioned in a sexual offence consent provision if any belief that the accused person has, or may have, that the other person consents to the act is not reasonable in the circumstances. (5) For subsection (4), without limiting the grounds on which it may be established that an accused person’s belief is not reasonable in the circumstances, the accused person’s belief is taken not to be reasonable in the circumstances if the accused person did not say or do anything to ascertain whether the other person consented. (Emphasis added)
The above provisions were inserted into the Crimes Act by the Crimes (Consent) Amendment Bill 2022 (ACT) (the Bill), which came into effect on 12 May 2022. The Explanatory Statement of the Bill explained the introduction of sub-ss (4) and (5) as follows: Sections 67 (4) and 67 (5) introduce a hybrid objective/subjective test in a trial of fact and remove the Morgan defence principle. These provisions have been drafted to give effect to the recommendations of the ACT Government’s Response to the Justice and Community Safety Inquiry on the draft Crimes (Consent) Amendment Bill 2018, and the subsequent New South Wales Law Reform Commission’s Report 148 of 2020, Consent in relation to sexual offences. Section 67 (4) introduces the concept of ‘reasonable belief’ in addition to the fault elements of knowledge and recklessness in the existing legislation. This applies an objective test by a trier of fact to consider and determine whether an accused person’s belief that consent had been given was reasonable in the circumstances. Under this provision, a trier of fact is required to apply a test of reasonable community standards, and consider whether a reasonable person, given all the circumstances of the case, would have reason to believe that consent had been given. This section gives effect to the removal of the Morgan defence. Under the Morgan defence an honest but mistaken belief by the accused that consent was given – no matter how misguided or unreasonable – may be used as a defence. Section 67 (4) makes it clear for a trier of fact, that any belief that consent had been given must be reasonable in the circumstances. Section 67 (5) introduces a new provision whereby – for an accused person’s belief about consent to be deemed reasonable in the circumstances – the accused person must have taken steps to ascertain the other person’s consent. This provision is an important component in establishing a communicative model of consent through the Bill. This new provision makes it clear that the person seeking consent has a responsibility to take steps to ascertain consent exists. Importantly, the clause shifts the focus of the inquiry at trial away from whether the complainant resisted or otherwise demonstrated an absence of consent. Under section 80D of the Evidence (Miscellaneous Provisions) Act 1991 a jury has discretion whether or not to consider if an accused person’s mistaken belief that a person consented to a sexual act was reasonable in the circumstances. Provisions at section 67 (4) and 67 (5) of this Bill remove that discretion and make it a requirement that juries must consider this element. Under sections 67 (4) and (5), where an accused person holds a belief (subjective) that consent was given, but that belief is (objectively) unreasonable by community standards, a trier of fact may find the accused person guilty of the sexual act. Under these provisions, a trier of fact will be required to consider all the circumstances of the case, including whether an accused person said or did anything to find out whether the other person consented to the act and, if so, what the accused person said or did. A person’s distorted view about appropriate sexual activity is not an excuse for sexual assault. The objective test prevents an accused person from relying on abhorrent views that fall below the accepted standards of the community.
The adequacy of the primary judge’s directions in the present case
For the reasons outlined above, the appellant’s contention that the primary judge erred by not instructing the jury in relation to an “evidentiary onus” concerning s 67(5) of the Crimes Act must be rejected. The appellant has not established that there was any other error in the directions given to the jury.
The trial in the present case was not complicated or lengthy. There was no dispute that sexual intercourse took place on 6 and 28 January 2023. The central issue at trial was whether the complainant consented to sexual intercourse on both of those occasions. The factual conflict between the parties was as to the circumstances in which sexual intercourse occurred. The complainant’s evidence was that she did not consent, that she did not say or do anything to indicate consent, and that the appellant did not say or do anything to ascertain her consent, on either occasion.
In contrast, the appellant’s account was that the complainant was actively engaging in sexual intercourse on each occasion. In particular, the appellant gave evidence that in respect of the first count, the complainant rubbed her buttocks against his penis and helped him remove her pants so that they could have consensual intercourse. In respect of the second count, the appellant gave evidence that the complainant said “yes” when he suggested they move to his bed and they giggled when he struggled to carry her. The appellant said that when on the bed the complainant “raised her legs” and he “got on top” and when he suggested that she “hop on top” she agreed and did so. The appellant said they were both making “arousal sounds”.
If the jury accepted that the complainant’s evidence was both credible and reliable beyond reasonable doubt, it would follow that any belief the appellant had in consent was either not honest or not reasonable. On the complainant’s account, the appellant had not done or said anything to ascertain her consent in relation to either of the charged acts.
On the other hand, if the jury had a doubt as to the complainant’s account and/or if they thought that it was possible that the appellant’s account was true, the prosecution would have failed to demonstrate that the complainant did not consent to sexual intercourse on either occasion and would also have failed to demonstrate that the accused did not have an honest and reasonable belief as to consent on either occasion. Importantly, the prosecution made no submission to the jury that they would convict the accused of either offence if they considered that the account given by the appellant in his record of interview or in his evidence at trial was true, or could possibly be true.
As discussed at [33] above, the onus of establishing that an accused knew or was reckless about a complainant’s lack of consent to an act of sexual intercourse remains on the prosecution at all times.
The jury could not have been misled as to the onus or standard of proof to be applied. The primary judge gave the jury a clear and unequivocal Liberato direction (Liberato v The Queen [1985] HCA 66; 159 CLR 507), informing the jury that they “must acquit [the appellant] if you believe what he says. You must acquit him if you think what he says might reasonably be true”. The primary judge also directed the jury in accordance with the decision in Murray (R v Murray (1987) 11 NSWLR 12), informing the jury that they could not convict the accused unless they were satisfied beyond reasonable doubt of the complainant’s credibility and reliability. In the circumstances of the present case, it was not necessary for the primary judge to say more.
Orders
I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: O Ferguson Date: 23 May 2025
Ware
DPP [2025] ACTCA 15
(1952) 85 CLR 437
(1987) 11 NSWLR 12
Leave was granted under r 5412(2) to rely on the amended ground. Leave under r 5531 to rely on a ground concerning directions unchallenged at trial was refused. The appeal was dismissed: [50].
The appellant’s record of interview with police was tendered in the prosecution case.
In that interview, the appellant stated that, on the first occasion he and the complainant had sexual intercourse, on 6 January 2023, they had fallen asleep while cuddling on the couch. While initially unsure, he concluded that they had both woken up at the same time. He stated that he “might have initiated things” on that first occasion but that “she didn’t say no and she was conscious”. When questioned as to whether a conversation took place, he replied “nothing was being said”. He clarified that “if she had said no [he] would have stopped” and “she didn’t push me away”. He stated that she “touched [his] penis” and was making “enjoying noises” which indicated to him that the intercourse was consensual.
The interview was terminated prior to any specific discussion about the sexual intercourse which occurred on 28 January 2023. However, the appellant stated generally that “sometimes she was riding me” and “I didn’t rape her because sometimes she was actually on top of me doing things herself”.
The primary judge also provided the jury with a document entitled ‘Elements of the Charges Faced by the Accused’. The content of the document was agreed to by the parties and a copy was provided to each member of the jury on the second day of the trial. The elements of the offence of sexual intercourse without consent were recorded in the document as follows: 1. The accused had sexual intercourse with the complainant, and 2. She did not consent to that sexual intercourse, and Either: The accused knew that the complainant was not consenting to sexual intercourse, or He realised that there was a possibility that the complainant was not consenting to sexual intercourse, but he went ahead anyway, or He didn’t even think about whether the complainant was consenting to sexual intercourse, not caring whether she was consenting or not, or He had no reasonable grounds for any belief that the complainant was consenting to sexual intercourse. The accused’s belief is not a reasonable one if he did not say or do anything to ascertain whether the complainant consented. Consent The complainant consented to sexual intercourse with the accused if: She gave informed agreement to that sexual act, and That agreement was given freely and voluntarily, and She communicated her agreement by saying or doing something. The complainant would not have consented to sexual intercourse with the accused only because: She did not say or do anything to resist the act, or She previously consented to having sexual intercourse with the accused. (Emphasis added)
Before directing the jury to begin their deliberations, the primary judge enquired with the parties as to whether any redirection was required. Neither counsel asked for any redirection nor raised any concerns about any part of the primary judge’s charge to the jury, or the written elements document. The appeal Appellant’s submissions
The appellant submitted that, consistent with the language of the Explanatory Statement of the Crimes (Consent) Amendment Bill 2022 (ACT), the newly introduced s 67(5) of the Crimes Act cast an evidentiary onus on an accused to identify evidence which indicates that they said, or did, something to ascertain that the other person was consenting. The appellant submitted that “once that evidentiary onus is satisfied… the prosecution bears the onus of satisfying the jury, beyond reasonable doubt, that the accused did not say, or do something, to ascertain whether the other person consented”.
The appellant submitted that the jury required instruction as to how to approach the facts in relation to this issue. In particular, the appellant contended that the jury required instruction as to the “standard” which applied when considering whether the appellant had discharged the “onus”.
The appellant submitted that s 67(5) of the Crimes Act is ambiguous, in that there is no “guidance as to what words, or actions, will satisfy the provision”. The appellant argued that the directions given by the primary judge were insufficient because they did not direct the jury that they were required to consider the reasonableness of the appellant’s belief that the complainant was consenting with reference to the specific evidence he gave about the sexual activity subject to the counts on the indictment. In this respect, the appellant emphasised that the primary judge had a duty to explain “how [the law] applied to the facts of the particular case”: Alford v Magee (1952) 85 CLR 437 at 466.
The appellant submitted that the “correct Direction” that should have been given in the present case was: (i) The accused bears an evidentiary onus in relation to s 67(5); (ii) Where that evidentiary onus is satisfied, the prosecution bears the onus of proving, beyond reasonable doubt, that anything said or done by the accused was not said or done to ascertain whether the other person consented; (iii) The test to be applied in determining whether anything said or done by the accused person was done to ascertain whether the other person consented, is whether, within the context of the relationship and, or interaction, a reasonable person in the position of the accused would have believed the words or actions were made for the purpose of ascertaining whether the other person was consenting. Respondent’s submissions
The respondent submitted that the appellant’s proposed amended ground of appeal represented a misconception of the function of a trial judge and the role of a jury. The respondent contended that whether the appellant held a belief as to the complainant’s consent and whether that belief was reasonable in the circumstances were questions of fact for the jury. Citing Langi v The Queen [2023] ACTCA 38 at [8]-[9], the respondent submitted that the primary judge “would have been in error to attempt to inform the jury as to what words or actions by an accused person would satisfy a reasonable belief in consent”.
In addition, the respondent submitted that the appellant’s contentions reflected an erroneous interpretation of ss 67(4) and (5) as casting an obligation upon an accused to specifically point to or adduce evidence about a belief in consent, which the prosecution must then exclude beyond reasonable doubt.
The respondent further submitted that, even if the primary judge’s directions as to the appellant’s reasonable belief warranted criticism, the Court would not be satisfied any error was a “departure from a trial according to law to the prejudice of the accused” such as to constitute a miscarriage of justice: see Hofer v The Queen [2021] HCA 36; 95 ALJR 937 at [41] citing Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [18]. In the alternative, the respondent relied on the proviso and contended that if error were established, the appeal should nonetheless be dismissed on the basis that “no substantial miscarriage of justice has actually occurred”: see s 37O(3) of the Supreme Court Act 1933 (ACT).
Finally, the respondent also relied on the decision of this Court in Hudson v DPP [2024] ACTCA 28 at [122]-[123], concerning r 5531 of the CPR, and the importance of the fact that trial counsel did not seek any redirection at trial.
It is clear from the above that, contrary to the appellant’s submissions, ss 67(4) and (5) should not be conceptualised as a ‘defence’. The onus of establishing that an accused knew or was reckless about a complainant’s lack of consent to the acts of sexual intercourse remains on the prosecution at all times. Even where an accused does not give evidence, the burden remains on the prosecution to establish that the accused did not do or say anything to ascertain consent, or the accused’s honest belief in consent was not “reasonable in the circumstances”.
Accordingly, the appellant’s contention that a jury considering sexual assault charges should be instructed that the appellant “bears an evidentiary onus for his assertion that he said, or did, something to ascertain whether the complainant was consenting” must be rejected.
Contrary to the appellant’s submissions, it was not necessary for the primary judge to provide any further instructions concerning what the jury might have considered to be reasonable grounds for a belief as to consent. In enacting ss 67(4) and (5), the legislature determined that the question of reasonableness was not to be defined, but was to be left as an open-textured question to be determined by the jury in each individual case, by reference to the application of community standards. In these circumstances, as the respondent submitted, the primary judge would have been in error if he had attempted to list particular words, or conduct, which would satisfy a reasonable belief in consent: see Langi at [8]-[9].
The primary judge provided the jury with a somewhat extreme, hypothetical of a man who honestly believed that a woman was consenting, even though she was crying, yelling at him to stop, and was calling out for help, as an example of an accused who had an honest, but unreasonable belief as to consent. This example demonstrates the risks of providing hypothetical examples in a case of this nature. Such an extreme hypothetical may risk distracting the jury from their consideration of the facts and circumstances of the matter before them. Where a trial judge considers that further explanation of reasonableness is required, the safer course is for the trial judge to remind the jury of the particular matters that have been the subject of the submissions of each party.
The appellant did not make any complaint about the primary judge’s use of this hypothetical, either during the trial, or on this appeal. Nor could any submission that this hypothetical gave rise to the risk of a miscarriage of justice be sustained. The extremity of the hypothetical provided by the primary judge was such that it could only have operated to the prejudice of the prosecution, and could not be relied upon as the source of any unfairness to the appellant.
The heart of the appellant’s complaint is that the primary judge did not provide the jury with instructions as to how to go about an assessment of reasonableness in the event that the jury accepted his account, or considered that there was a reasonable possibility that his account was true. In his written submissions in reply, counsel for the appellant submitted: His Honour’s Directions simply do not direct the jury as to how they were to approach the application of s 67(5) to the evidence. Was the appellant’s evidence sufficient to satisfy s 67(5) in the sense that he had said, or done, something to ascertain whether the complainant was consenting? If so, did he bear the onus of proof and if so, upon what standard? What was the required nature of the evidence to satisfy the requirements of s 67(5)? Was it relevant that the prosecution did not put to the applicant what he said occurred did not constitute words, or actions, within s 67(5)?
Each of these rhetorical questions were answered, clearly and succinctly, in the primary judge’s Liberato direction, which, as noted above, instructed the jury that they “must acquit [the appellant] if you believe what he says. You must acquit him if you think what he says might reasonably be true”.
The unequivocal effect of this direction when considered in the context of the summing up as a whole is further supported by the absence of any request for redirection by the appellant’s trial counsel. The absence of any request for redirection is a “cogent indication” that counsel perceived that the jury had been properly instructed in relation to issues of consent: see similarly Hudson at [123] and the cases cited therein. In these circumstances, leave under r 5531 of the CPR should be refused. Conclusion
Accordingly, the appellant has not established the error alleged in the proposed amended ground of appeal.
Whilst the appellant should be granted leave under r 5412(2) to amend his Notice of Appeal, leave under r 5531 of the CPR to rely on a ground of appeal relating to directions that were unchallenged in the proceedings below should be refused. It follows that the appeal must be dismissed.