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Court of Criminal Appeal 17 December 2025

Koch v R

[2025] NSWCCA 219

Sexual offences

Citation: Koch v R [2025] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 17 December 2025
Judges: Kirk JA; Sweeney and Coleman JJ agreeing

Background

The appellant was convicted by unanimous jury verdict in the District Court of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The trial was presided over by Payne DCJ.

During jury deliberations, the jury sent a note seeking clarification on the trial judge's directions about "knowing she was not consenting." The trial judge responded with oral directions. It is those directions, not the original summing-up, that formed the basis of both grounds of appeal.

The appellant's trial lawyer did not object to any part of the impugned directions at the time they were given. As a result, the appellant required leave to bring the appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

  • Whether the trial judge misdirected the jury on the mens rea element under s 61HE(3)(c) of the Crimes Act by framing the relevant test as whether "there were no reasonable grounds" for a belief in consent, rather than whether the accused personally "had no reasonable grounds" for that belief.
  • Whether that distinction, previously identified in Lazarus v R [2016] NSWCCA 52 and Hayne v R [2022] NSWCCA 11, imports a partially subjective element into what might otherwise appear to be an objective test.
  • Whether the trial judge erroneously shifted the onus of proof to the accused by suggesting he bore some obligation to persuade the jury that he actually believed the complainant was consenting.

Decision

Ground 1: Alleged misdirection on the mens rea test

Kirk JA acknowledged that Lazarus and Hayne had identified a difference between asking what a reasonable person would have concluded about consent (impermissible) and asking whether the accused personally had no reasonable grounds for believing in consent (the correct statutory formulation). However, neither case clearly explained what practical difference the phrasing makes. Kirk JA identified two possible explanations: the phrasing may require focus on what the accused actually knew about the circumstances at the relevant time; or the Court may have implicitly accepted in those cases that the test under s 61HE(3)(c) was not wholly objective and permitted some subjective elements. His Honour noted the latter possibility has some force given the broader context, including self-defence doctrine, comparable interstate and UK provisions, and the provision's drafting history. The Court declined to resolve the question, treating this appeal as an unsuitable vehicle for doing so.

On the facts, Kirk JA found no material error. The trial judge had used the impugned phrasing ("there were no reasonable grounds") on only two occasions in her further directions. The first instance was clearly withdrawn by the judge herself; the second appeared as part of a longer sentence and had to be read in context. The broader directions throughout the summing-up consistently focused the jury's attention on what the accused knew and believed. The infelicities of expression were not material and had no legal effect. The absence of any objection by trial counsel strongly reinforced the conclusion that the imprecision had no practical consequence in the atmosphere of the trial.

Ground 2: Alleged onus-shifting

The Court noted that the fourth category of knowledge under s 61HE(3) (no reasonable grounds for a belief in consent) is only practically engaged where there is some reasonable possibility that the accused actually did believe in consent. The very premise of applying that category is that an actual belief may exist. Directions focusing on whether the accused actually believed the complainant was consenting therefore do not improperly shift an onus; they reflect the inherent structure of the provision.

Reading the impugned directions in context, the Court found no real risk that the jury understood the accused to bear any onus on the knowledge element. The trial judge had given emphatic and repeated directions throughout the summing-up that the Crown bore the onus of proof on every element, including the mens rea element. The absence of any objection from trial counsel further confirmed that no confusion was likely to have arisen.

Orders Made

  • Leave to appeal refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Key Takeaways

  • A jury direction that uses the phrase "there were no reasonable grounds" for a belief in consent, rather than the accused "had no reasonable grounds," may be imprecise in light of Lazarus and Hayne, but does not necessarily constitute reversible error when the broader directions correctly focused the jury on the accused's own knowledge and belief.
  • The Court of Criminal Appeal expressly left open whether the test under s 61HE(3)(c) of the Crimes Act (now repealed) incorporated subjective elements alongside its objective standard, treating the present case as an inappropriate vehicle to resolve that question.
  • Under s 61HE(3), the fourth category of knowledge (no reasonable grounds for a belief in consent) is only practically engaged where there is a reasonable possibility the accused actually believed the complainant was consenting. Directing a jury on that actual belief does not, of itself, suggest the accused bears an onus of proof.
  • Directions must be evaluated in their full context, not by isolating individual phrases. Where sound and emphatic directions on onus and the correct legal test have been given elsewhere, brief imprecise expressions are less likely to be material.
  • Failure to object to directions at trial remains a significant factor when leave to appeal is sought under r 4.15. In both grounds, the absence of objection by experienced trial counsel was treated as strong evidence that the impugned directions had no practical consequence for the jury's deliberations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 61HE, 61I
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Criminal Code Act 1899 (Qld), s 24
- Criminal Code Act Compilation Act 1913 (WA), s 24
- Sexual Offences Act 2003 (UK), s 1(1)(c)

Cases
- Lazarus v R [2016] NSWCCA 52
- Hayne v R [2022] NSWCCA 11
- O'Sullivan v R [2012] NSWCCA 45; (2012) 233 A Crim R 449
- Lee v The King [2023] NSWCCA 203; (2023) 310 A Crim R 170
- Al-Sheikh v R [2025] NSWCCA 205
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
- Brawn v The Queen [2025] HCA 20; (2025) 99 ALJR 872
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33
- The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36
- Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229
- R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420
- R v Wilson [2009] 1 Qd R 476; [2008] QCA 349
- Butler v Western Australia [2013] WASCA 242
- R v Hawes (1994) 35 NSWLR 294
- R v Petroff (1980) 2 A Crim R 101