Case Law

Question 1

Genitalia

Answer 1

R v Koroheke
The genitalia comprise the reproduction organs, interior and exterior… they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 2

Consent

Answer 2

R v Cox
Consent must be “full, voluntary, free and informed… freely and voluntarily given by a person in a position to form a rational judgment”.

Question 3

Belief in consent

Answer 3

R v Gutuama
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.

Question 4

Force / threat or fear of force

Answer 4

R v Koroheke
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

Question 5

Attempt

Answer 5

R v Harpur
An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.

Question 6

Sufficiently proximate

Answer 6

R v Harpur
“[The Court may] have regard to the conduct viewed cumulatively up to the point when the conduct in question stops … the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done … is always relevant, thought not determinative.”

Question 7

Consent of a child

Answer 7

Cox v R
“Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.

Question 8

Proof of age

Answer 8

R v Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof ot [the victim’s] age.”

Question 8

Reasonable belief in consent of child

Answer 8

Cox v R
“Save in exceptional and rare circumstances … even where she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”

Question 9

Indecency

Answer 9

R v Court
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 10

Indecent Assault

Answer 10

R v Leeson
“The definition of ‘indecent assault’ … is an assault accompanied with circumstances of indecency …”