R v. Lazarus

In his initial trial, a jury found the accused guilty of the crime of sexual intercourse without consent. He appealed and was granted a retrial, which was a bench trial (no jury). The focus of the retrial was whether the complainant had consented and, if not, whether the accused knew. The complainant (then 18) and the accused (then 21) met at a Sydney nightclub. Soon after meeting, and after having danced and kissed on the dance floor, the accused anally penetrated the complainant in an alleyway behind the club. During the retrial, the court did not believe that the complainant “by her actions, herself meant to consent to sexual intercourse and in her own mind was not consenting to sexual intercourse,” but the issue was “[w]hether or not the accused knew that she was not consenting.” The court held that the accused did not know that the complainant had not consented. In reaching its decision, the court noted that the complainant did “not say ‘stop’ or ‘no.’ She did not take any physical action to move away from the intercourse or attempted intercourse.” The court accepted that the “series of circumstances on the early morning of 12 May 2013 amounts to reasonable grounds, in the circumstances for the accused to have formed the belief […] that in fact the complainant was consenting to what was occurring even though it was quick, unromantic, they had both been drinking and in the case of both of them may not occurred if each had been sober.” The court acquitted the accused on the basis that the “the Crown ha[d] [not] made out the third element, namely to prove that the accused had no reasonable grounds for believing that the complainant was not consenting…” The court’s judgment of acquittal was upheld on appeal. This case is important because it led to the NSW Attorney General requesting that the NSW Law Reform Commission review section 61HA of the Crimes Act 1900 (NSW) in order to determine if the law should be amended to better protect victims. District Court re-trail decision available here: http://static1.1.sqspcdn.com/static/f/556710/27630007/1500427752463/Tupman_Lazarus.pdf?token=mHtsYtApoYyV2KbtbIvqb0GxWmc%3D