MEHRABI -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 111

[2026] WASCA 111 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MEHRABI -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 111 CORAM : QUINLAN CJ THOMSON P FIANNACA J HEARD : 17 FEBRUARY 2026 DELIVERED : 11 AUGUST 2026 FILE NO : CACR 11 of 2025 BETWEEN : FARZAM MEHRABI Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : SWEENEY DCJ File Number : IND 123 of 2023 Catchwords: Criminal law – Appeal against conviction – Offences of administering a stupefying drug with intent to facilitate the commission of an indictable offence, -- 1 of 58 -- [2026] WASCA 111 Page 2 unlawful and indecent assault and sexual penetration without consent – Consent obtained by deceit or fraudulent means Criminal law – Sexual offences – Tendency reasoning – Whether alleged sexual offences manifestations of the same tendency Criminal law – Sexual offences – Consent obtained by deceit or fraudulent means – Directions as to causal connection between deceit and vitiated consent – Where deceit results in involuntary intoxication Criminal law – Sexual offences – Consent obtained by deceit or fraudulent means – Whether defence of honest and reasonable, but mistaken belief available Legislation: Criminal Code (WA), s 24, s 319(2)(a) Result: Leave to appeal granted on grounds 1 and 3 Leave to appeal refused on ground 2 Appeal dismissed Category: A Representation: Counsel: Appellant : P Yovich SC Respondent : B B Sertorio SC Solicitors: Appellant : Panetta McGrath Lawyers Respondent : Director of Public Prosecutions (WA) Cases referred to in decision: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 -- 2 of 58 -- [2026] WASCA 111 Page 3 Brawn v R [2025] HCA 20; (2025) 99 ALJR 872 Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 281 CLR 18 Gandy v The State of Western Australia [2017] WASCA 93 HES v The State of Western Australia [2022] WASCA 151; (2022) 59 WAR 391 Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474 Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 New v R [2025] NSWCCA 32 Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249 Pickett v The State of Western Australia [2025] WASCA 109 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Ruthsalz v The State of Western Australia [2018] WASCA 178 Skelly v The State of Western Australia [2020] WASCA 3 The King v AR [2026] HCA 10; (2026) 428 ALR 646 -- 3 of 58 -- [2026] WASCA 111 Page 4 Table of Contents QUINLAN CJ & FIANNACA J: ............................................................................................... 5 Introduction and overview .......................................................................................................... 5 State case at trial ......................................................................................................................... 8 Complainants' evidence ............................................................................................................ 11 Ms Campbell ........................................................................................................................ 11 Ms King ................................................................................................................................ 12 Ms Potter .............................................................................................................................. 13 Ms Vargas ............................................................................................................................. 15 Ms Turner ............................................................................................................................. 15 Mr Mehrabi's evidence ............................................................................................................. 18 Expert evidence as to the effects of MDMA ............................................................................ 19 Learned trial judge's directions to the jury ............................................................................... 20 Directions as to the meaning of consent ............................................................................... 20 Directions as to tendency reasoning ..................................................................................... 26 Directions as to honest and reasonable mistake ................................................................... 27 Grounds of appeal ..................................................................................................................... 28 Ground 1 – tendency reasoning ............................................................................................ 33 Ground 3 – causation in the case of vitiated 'consent' .......................................................... 36 Ground 3 – discussion ...................................................................................................... 38 Ground 3 – disposition ..................................................................................................... 45 Ground 2 – honest and reasonable mistake .......................................................................... 47 Ground 2 – previous cases ................................................................................................ 48 Ground 2 – disposition ..................................................................................................... 50 Conclusion ................................................................................................................................ 52 THOMSON P: .......................................................................................................................... 52 Relevant background ................................................................................................................ 53 Appeal ground 1 ....................................................................................................................... 54 Appeal ground 2 ....................................................................................................................... 55 Appeal ground 3 ....................................................................................................................... 56 Conclusion ................................................................................................................................ 57 -- 4 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 5 QUINLAN CJ & FIANNACA J: Introduction and overview 1 On 4 September 2024, following a trial before a judge and jury, the appellant, Farzam Mehrabi, was convicted of 21 offences against six young women he had met via the 'dating' apps, Tinder and Bumble. The convictions included offences of administering a stupefying drug with intent to facilitate the commission of an indictable offence, unlawful and indecent assault and sexual penetration without consent. 2 The charges arose out of a series of dates between Mr Mehrabi and the women in February and March 2022. Mr Mehrabi was aged 31 years at the time (although his Tinder profile suggested that he was 24). The women were between 18 and 22 years of age. For the purposes of these reasons, their names were Lauren Campbell, Rahni King, Emma Potter, Monique Vargas, Linda Turner and Susan Meyer.1 3 The dates typically included the consumption of alcohol and, on occasion, a prohibited drug, 3,4-Methylenedioxymethamphetamine (MDMA). There was also no dispute that Mr Mehrabi engaged in sexual activity, including sexual penetration, with a number of the women. 4 Whether the women consented to the sexual activity was, however, a matter of dispute. The State case was that Mr Mehrabi had given the women MDMA without their knowledge with the intention of engaging in sexual activity with them without their free and voluntary consent and that he had engaged in sexual activity without their consent. 5 Most of the women gave evidence that Mr Mehrabi had sexually touched or penetrated them without their consent and despite their protestations. They described Mr Mehrabi being physically rough with them and variously said that they tried to push him away, that they said 'No' and that they had said 'Stop'. Two of the women (Ms Campbell and Ms Turner) however, said that they could not remember the sexual activity at all or described being 'sluggish', 'half-aware' and unable to 'really speak', as a consequence of (on the State's case) having been drugged without their knowledge. 6 Mr Mehrabi gave evidence at trial. His evidence was in stark contrast to the women; he denied giving any of the women MDMA 1 All of the women's names in these reasons are pseudonyms. -- 5 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 6 without their knowledge and he said that any sexual activity with the women (some of which he denied occurred) took place with their consent, or that he had honestly and reasonably believed that they had consented. 7 In relation to the issue of consent, the learned trial judge directed the jury generally that there were three ways in which the State could prove that consent was not freely and voluntarily given at the time of the sexual activity: first, that the complainant had consciously failed to give her consent; secondly, that the complainant was so intoxicated by alcohol or drugs that she was incapable of giving free and voluntary consent; or thirdly, that the complainant's apparent 'consent' was a result of deceit or fraudulent means (namely as a result of having been given drugs without her knowledge). 8 The learned trial judge directed the jury that, in relation to Ms King, Ms Potter and Ms Vargas, the State case relied upon the women's evidence that they consciously did not give consent to the sexual activity. In relation to Ms Campbell and Ms Turner, her Honour directed the jury that the State also relied upon the second and third means of proving the absence of consent. 9 The learned trial judge also directed the jury that, if they were satisfied beyond reasonable doubt that Mr Mehrabi was guilty of one of the sexual offences charged, it was permissible for the jury to reason that Mr Mehrabi had a tendency to engage in sexual acts with women without their consent, and without an honest and reasonable belief as to their consent, and that such a tendency made it objectively more likely that he acted in the same way on other occasions. That is, her Honour directed the jury that, if they were satisfied as to Mr Mehrabi's guilt in relation to one of the sexual offences, the jury was entitled to engage in 'tendency reasoning'. Her Honour gave further directions as to the permissible use of such 'tendency reasoning'. 10 As noted at the outset, the jury returned verdicts of guilty in relation to 21 charges: four counts of administering a stupefying drug with intent to facilitate the commission of an indictable offence; 12 counts of sexual penetration without consent; two counts of unlawful and indecent assault; and three counts of unlawfully impeding breathing by manually applying pressure to the neck. The latter convictions related to Mr Mehrabi having choked Ms Potter and Ms Turner during the sexual activity. -- 6 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 7 11 Mr Mehrabi now appeals his conviction, on three grounds. 12 Mr Mehrabi does not challenge the directions given by the learned trial judge in relation to the manner in which the State could prove that consent was not freely and voluntarily given at the time of the sexual activity, including that the complainant's apparent 'consent' was a result of deceit or fraudulent means (namely having been given drugs without her knowledge). 13 By ground 1 of the appeal, however, Mr Mehrabi contended that the learned trial judge erred in failing to direct the jury that, if they were satisfied that Mr Mehrabi was guilty of any of the offences against Ms Campbell or Ms Turner on the basis that the State had proven that their 'consent' was a result of deceit or fraudulent means (namely having been given drugs without her knowledge), the jury could not use such a conclusion by way of 'tendency reasoning'. That was because, Mr Mehrabi submitted, 'the different pathways [by which the State could prove the absence of consent] did not constitute evidence supporting the same tendency'. 14 By ground 2 of the appeal, Mr Mehrabi contended that the learned trial judge erred in law by directing the jury that, if the State proved that Ms Campbell or Ms Turner did not consent to sexual activity on the basis that the State had proven that their 'consent' was a result of deceit or fraudulent means, the defence of honest and reasonable, but mistaken, belief as to their consent was not open. 15 By ground 3 of the appeal, Mr Mehrabi contended that the learned trial judge erred in law in failing to direct the jury that they could only be satisfied that any apparent 'consent' by Ms Campbell or Ms Turner was a result of deceit or fraudulent means if they were satisfied that in the absence of the deceit or fraudulent means (i.e. if they had not been drugged without their knowledge), they would not have consented to the sexual activity. 16 Notwithstanding their considerable ingenuity, none of the grounds of appeal have been established. First, viewed in the context of the issues at trial, each of the alternative ways of establishing the absence of consent in the present case were probative of the same tendency on the part of Mr Mehrabi, namely a tendency to act in disregard of the free and voluntary choice of women to engage in sexual activity. Indeed, the conclusion that Mr Mehrabi had intentionally drugged a woman without her consent, to facilitate having sex with her, was, -- 7 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 8 given the premeditation involved in such conduct, particularly probative evidence of such a tendency. 17 Secondly, if the jury was satisfied that Mr Mehrabi had obtained the apparent 'consent' of Ms Campbell or Ms Turner by deceit or fraudulent means, there was indeed no room for the defence of honest and reasonable mistake as to their consent. Amongst other reasons, any 'apparent' consent by such means would be incapable of providing a basis for either an honest or reasonable belief as to her free and voluntary consent. 18 Finally, the learned trial judge did not err in her directions as to the necessary causal link between deceit or fraudulent means and the complainant's state of mind in the present case. Her Honour's direction to the jury was that, in a case of deceit or fraudulent means, they must be satisfied beyond reasonable doubt that any drug that the complainant unknowingly consumed played a 'material role' in her apparent decision to consent to sexual activity. In the circumstances of the present case, that direction was correct and sufficient. While in some cases of apparent consent obtained by deceit or fraudulent means, it may be relevant to consider the hypothetical question of whether the complainant would have consented in the absence of the fraud or deceit, no such consideration could apply to the present case. If the jury concluded that any of the complainants engaged in sexual activity with Mr Mehrabi because their decision-making capacity was materially affected by his having fraudulently drugged them, it was not necessary to pose the distasteful counterfactual as to whether they may have consented to sex if the circumstances had been entirely different. 19 While we would grant leave to appeal on grounds 1 and 3, we would dismiss the appeal. State case at trial 20 The indictment in this matter charged Mr Mehrabi as follows: (1) On or about 18 February 2022 at Perth and elsewhere Farzam Mehrabi offered to supply a prohibited drug, namely 3-4-Methylenedioxymethamphetamine (MDMA), to another. (2) On or about 23 February 2022 at Shelley Farzam Mehrabi with intent to facilitate the commission of an indictable offence, namely unlawful and indecent assault, administered a stupefying drug to [Lauren Campbell]. -- 8 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 9 (3) On the same date and at the same place as in Count (2) Farzam Mehrabi sexually penetrated [Lauren Campbell], without her consent, by penetrating her vagina with his penis. (4) On the same date and at the same place as in Count (2) Farzam Mehrabi sexually penetrated [Lauren Campbell], without her consent, by penetrating her vagina with his penis. (5) On or about 3 March 2022 at Shelley Farzam Mehrabi offered to supply a prohibited drug, namely 3-4-Methylenedioxy- methamphetamine (MDMA), to another. (6) On the same date and at the same place as in Count (5) Farzam Mehrabi unlawfully and indecently assaulted [Rahni King], by touching her vagina/groin area. (7) On the same date and at the same place as in Count (5) Farzam Mehrabi sexually penetrated [Rahni King], without her consent, by penetrating her vagina with his penis. (8) On 5 March 2022 at Shelley Farzam Mehrabi with intent to facilitate the commission of an indictable offence, namely unlawful and indecent assault, administered a stupefying drug to [Emma Potter]. (9) On the same date and at the same place as in Count (8) Farzam Mehrabi sexually penetrated [Emma Potter], without her consent, by penetrating her vagina with his penis. (10) On the same date and at the same place as in Count (8) Farzam Mehrabi sexually penetrated [Emma Potter], without her consent, by penetrating her vagina with his penis. (11) On the same date and at the same place as in Count (8) Farzam Mehrabi sexually penetrated [Emma Potter], without her consent, by penetrating her vagina with his penis. (12) On the same date and at the same place as Count (8) Farzam Mehrabi unlawfully impeded the normal breathing of [Emma Potter], by manually applying pressure to her neck. (13) On the same date and at the same place as in Count (8) Farzam Mehrabi sexually penetrated [Emma Potter], without her consent, by penetrating her vagina with his penis. (14) On or about 5 March 2022 at Fremantle Farzam Mehrabi offered to supply a prohibited drug, namely 3-4-Methylenedioxy- methamphetamine (MDMA), to another. (15) On or about 10 March 2022 at Shelley Farzam Mehrabi with intent to facilitate the commission of an indictable offence, -- 9 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 10 namely unlawful and indecent assault, administered a stupefying drug to [Monique Vargas]. (16) On the same date and at the same place as in Count (15) Farzam Mehrabi sexually penetrated [Monique Vargas], without her consent, by penetrating his finger(s) into her vagina. (17) On or about 11 March 2022 at Perth and elsewhere Farzam Mehrabi with intent to facilitate the commission of an indictable offence, namely unlawful and indecent assault, administered a stupefying drug to [Linda Turner]. (18) On or about 11 March 2022 at Shelley Farzam Mehrabi sexually penetrated [Linda Turner], without her consent, by performing cunnilingus. (19) On the same date and at the same place as in Count (18) Farzam Mehrabi sexually penetrated [Linda Turner], without her consent, by inserting his finger(s) into her vagina. (20) On the same date and at the same place as in Count (18) Farzam Mehrabi unlawfully and indecently assault [Linda Turner], by procuring her to touch his penis. (21) On the same date and at the same place as in Count (18) Farzam Mehrabi sexually penetrated [Linda Turner], without her consent, by penetrating her vagina with his penis. (22) On the same date and at the same place as in Count (18) Farzam Mehrabi unlawfully impeded the normal breathing of [Linda Turner], by manually applying pressure to her neck. (23) On the same date and at the same place as in Count (18) Farzam Mehrabi sexually penetrated [Linda Turner], without her consent, by penetrating her vagina with his penis. (24) On the same date and at the same place as in Count (18) Farzam Mehrabi unlawfully impeded the normal breathing of [Linda Turner], by manually applying pressure to her neck. (25) On 17 March 2022 at Perth Farzam Mehrabi with intent to facilitate the commission of an indictable offence, namely unlawful and indecent assault, administered a stupefying drug to [Susan Meyer]. 21 As will be apparent, counts 1, 5 and 14 of the indictment alleged that Mr Mehrabi offered to supply a prohibited drug, namely MDMA, to another. Those charges related to occasions upon which a woman voluntarily took the drug when offered to her by Mr Mehrabi. -- 10 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 11 Mr Mehrabi pleaded guilty to those counts and they were not the subject of the trial. 22 At the conclusion of the trial, the jury returned a verdict of not guilty in relation to count 15 on the indictment, being a charge that Mr Mehrabi had administered a stupefying drug to Ms Vargas with intent to facilitate the commission of an indictable offence. 23 The remaining 21 counts on the indictment are the counts in relation to which Mr Mehrabi was convicted. Complainants' evidence 24 For the purposes of the appeal it is only necessary to refer to the evidence of Lauren Campbell, Rahni King, Emma Potter, Monique Vargas and Linda Turner, as they were the complainants in relation to whom Mr Mehrabi was convicted of sexual offences. The State did not allege that Mr Mehrabi had engaged in any sexual activity with Ms Meyer. 25 A broad description of the relevant complainants' evidence suffices for the purposes of the appeal. Ms Campbell 26 Counts 2, 3 and 4 on the indictment related to Ms Campbell's attendance at Mr Mehrabi's house on 23 February 2022. 27 Ms Campbell gave evidence that she had met Mr Mehrabi on Tinder earlier in February 2022. They had previously gone out on a date on 18 February 2022, in the course of which they both took MDMA (count 1) and engaged in consensual sexual activity. They exchanged text messages over the following days. 28 On 23 February 2022, Ms Campbell attended Mr Mehrabi's house at his invitation. While they had a number of drinks, Ms Campbell said that there was no discussion of drugs and that she had no intention of taking drugs that night.2 29 Ms Campbell described feeling quite unwell. She said that she felt dizzy and nauseous and that her teeth were chattering. She remembered vomiting, following which she said 'everything in my memory goes black [and] I can't remember anything'. Prior to blacking out, 2 Trial ts 507. -- 11 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 12 Ms Campbell remembered asking Mr Mehrabi whether he had drugged her.3 This, and other evidence of a positive test for MDMA from a blood sample taken from Ms Campbell, formed the basis of count 2. 30 The next thing that Ms Campbell remembered was waking in Mr Mehrabi's bed, on 24 February 2022, wearing only his T-shirt and her underwear.4 She had bruising and scratches on her body and was sore. 31 There was no doubt that between the time of Ms Campbell describing blacking out, and her waking the next morning, Mr Mehrabi sexually penetrated her, twice. Mr Mehrabi said that he had had sex with Ms Campbell in a recorded telephone call with her later that day. He said that they had sex at her car and in the garden at the front of his house.5 Mr Mehrabi also formally admitted to penetrating Ms Campbell's vagina with his penis on these occasions at trial.6 Ms Campbell gave evidence that she had no recollection of having sex with Mr Mehrabi on those occasions. She said that, as far as she was aware, she did not consent to Mr Mehrabi sexually penetrating her.7 Those two acts of sexual penetration formed the basis of counts 3 and 4. Ms King 32 Counts 5, 6 and 7 on the indictment related to a date between Mr Mehrabi and Ms King on 3 March 2022. Mr Mehrabi and Ms King had met on Tinder. 33 On that day, Mr Mehrabi and Ms King met at a bar for drinks, following which they later went to Mr Mehrabi's home, where they consumed more alcohol. Ms King said that while at his house, Mr Mehrabi suggested that they take MDMA. Ms King agreed and they left to get some MDMA.8 34 When they returned to Mr Mehrabi's house they took some of the MDMA (count 5, to which Mr Mehrabi pleaded guilty).9 3 Trial ts 508. 4 Trial ts 510. 5 Exhibit 23. 6 Exhibit 2. 7 Trial ts 524 - 525. 8 Trial ts 707 - 709. 9 Trial ts 714. -- 12 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 13 35 Ms King gave evidence that she then began to feel very sick and vomited.10 She said that, after being in the bathroom, Mr Mehrabi took her to his bedroom, where she lay down on the bed. While on the bed, Ms King said that Mr Mehrabi touched her vagina with his fingers over her underwear and that he did so without her consent. Ms King gave evidence that she 'tried to push his fingers away'.11 This evidence formed the basis of count 6. 36 Ms King said that Mr Mehrabi lay on top of her. She said that '[she] tried to push him away and he was moving [her] panties – [her] undies to the side', and that she said to him 'Stop' and 'No'.12 Ms King said that Mr Mehrabi then penetrated her vagina with his penis, without her consent.13 She gave evidence that Mr Mehrabi later said that she would not 'remember this in the morning'.14 This evidence formed the basis of count 7. Ms Potter 37 Counts 8, 9, 10, 11, 12 and 13 on the indictment related to a date between Mr Mehrabi and Ms Potter on 4 March 2022. Ms Potter gave evidence that she met Mr Mehrabi on Tinder on 27 February 2022 and, after corresponding for a time, they arranged to meet on 4 March 2022. 38 On the night of 4 March 2022, Mr Mehrabi and Ms Potter attended a number of bars in Perth, before returning to Mr Mehrabi's house at the end of the night. Ms Potter said that she was 'feeling like good' and not 'overly intoxicated' at that time.15 When they returned to the house, in the early hours of 5 March 2022, Mr Mehrabi offered Ms Potter a drink. She accepted the drink but poured some of it out, which she said frustrated Mr Mehrabi. 39 Ms Potter began to feel dizzy, nauseous and suddenly quite tired.16 That evidence and evidence from a hair follicle which tested positive for MDMA,17 formed the basis of count 8, namely that Mr Mehrabi had drugged Ms Potter without her knowledge with intent to commit an 10 Trial ts 717. 11 Trial ts 725, 728. 12 Trial ts 726. 13 Trial ts 726 - 728. 14 Trial ts 734. 15 Trial ts 973. 16 Trial ts 979. 17 Trial ts 1514 - 1515. -- 13 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 14 indictable offence. Ms Potter went to Mr Mehrabi's bedroom where she 'just thought that we were going to go to sleep'.18 40 Once in the bedroom, Mr Mehrabi pushed Ms Potter onto the bed and removed her top and trousers, as well as his own trousers and underwear. Ms Potter gave evidence that Mr Mehrabi straddled her, with his legs either side of her, and was kissing her, to which she said, 'Please, can we stop?'. Ms Potter said that Mr Mehrabi did not stop and put his penis into her vagina without her consent (count 9).19 41 Ms Potter said that Mr Mehrabi stopped and moved next to her, before starting to kiss her again. She said that Mr Mehrabi got back on top of her and was 'a lot rougher this time' and penetrated her vagina with his penis, again without her consent (count 10).20 Ms Potter said that Mr Mehrabi then 'flipped' her body around and lifted her onto her hands and knees and again penetrated her vagina with his penis without her consent (count 11).21 42 Ms Potter said that, after a while, she managed to push Mr Mehrabi backwards and he stopped. She said that he became frustrated with her and 'quite visibly angry'.22 After a few minutes, during which Ms Potter said that Mr Mehrabi started to calm down, he got back on top of her again, straddling her. Ms Potter said that Mr Mehrabi put his hands on her throat and started to push down. She said there was a lot of pressure and that she felt like she couldn't breathe properly. Ms Potter said this went on for about 'five minutes maybe', during which Mr Mehrabi forcefully slapped her on the face with his palm.23 The evidence of Mr Mehrabi applying pressure to Ms Potter's neck and impeding her breathing formed the basis for count 12. 43 Ms Potter said that, while Mr Mehrabi kept pressure on her neck and slapped her face (this time 'kind of intimately'), he again put his penis in her vagina (count 13).24 Ms Potter gave evidence that she was terrified and did not give Mr Mehrabi permission to do any of these things. 18 Trial ts 981. 19 Trial ts 982 - 983. 20 Trial ts 983 - 984. 21 Trial ts 984 - 985. 22 Trial ts 986. 23 Trial ts 987 - 988. 24 Trial ts 988. -- 14 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 15 44 Ms Potter said that Mr Mehrabi ejaculated on her and threw a towel over her, following which she passed out.25 Ms Vargas 45 Counts 15 and 16 on the indictment related to a date between Mr Mehrabi and Ms Vargas on 9 March 2022. 46 Mr Mehrabi and Ms Vargas had connected earlier in February on Tinder. On 9 March 2022 they went to a bar in the city where they had a number of cocktails. Ms Vargas said that, while at the bar, she told Mr Mehrabi that she 'didn't want a one night stand, I didn't want sex'.26 After the bar they returned to Mr Mehrabi's house, arriving just before midnight on 10 March 2022. 47 Back at the house, Mr Mehrabi prepared some more drinks. Ms Vargas said that she began to feel sick and asked for a drink of water. She said that they then shared a consensual kiss, following which they had a conversation (the detail of which is not necessary to recount) which shocked her and which she 'felt a bit disgusted by'.27 48 Ms Vargas said that Mr Mehrabi became 'quite aggressive with his tone', insisting that she drink the water that he had prepared. She then said that Mr Mehrabi forcefully tried to kiss her without her consent. Ms Vargas said that she tried to get him off her, but he restrained her wrist to the couch they were sitting on. She said that Mr Mehrabi used his other hand to pull up her dress, move her underwear and penetrate her vagina with his fingers. She said that Mr Mehrabi was moving his fingers in and out forcibly and that 'it hurt'. Ms Vargas said that she was crying and that Mr Mehrabi had sexually penetrated her without her consent.28 This evidence formed the basis of count 16. It will be recalled that the jury acquitted Mr Mehrabi of count 15, the allegation that Ms Vargas had been drugged without her knowledge. Ms Turner 49 Counts 17, 18, 19, 20, 21, 22, 23 and 24 on the indictment related to a date between Mr Mehrabi and Ms Turner on 11 March 2022. They connected on Tinder in February and had met in person on an earlier occasion. 25 Trial ts 988 - 990. 26 Trial ts 828. 27 Trial ts 839 - 841. 28 Trial ts 842 - 843. -- 15 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 16 50 On 11 March 2022, Mr Mehrabi and Ms Turner went to two bars in the city where they had cocktails. While at the second bar, Mr Mehrabi took a glass of water he had obtained for Ms Turner into the men's toilet before giving it to her. After she drank the water, Ms Turner and Mr Mehrabi left the bar to return to his house. Walking back to Mr Mehrabi's car, Ms Turner described feeling 'flustered' and her balance was off. She said that her vision and sound were 'blurred'.29 This evidence, and evidence from one of Ms Turner's hair follicles that tested positive for MDMA,30 formed the basis of count 17, the charge that Mr Mehrabi had given Ms Turner MDMA without her knowledge. 51 When they returned to Mr Mehrabi's house, Ms Turner and Mr Mehrabi spent some time in the garden before Mr Mehrabi walked Ms Turner to the bedroom. Ms Turner said that she was 'so tired' and was 'feeling really out of it' and just wanted to sleep. She said that Mr Mehrabi started kissing her, to which she responded, 'I really don't want to do this tonight'.31 52 Ms Turner said that Mr Mehrabi undressed her and then began licking her vagina. She said that she did not give Mr Mehrabi permission to lick her vagina; she said that she was repulsed and, with body language, communicated that she was uncomfortable. Ms Turner said that she was 'just laying there' and 'had no idea what was really happening'.32 This evidence formed the basis of count 18. 53 While he was licking her vagina, Mr Mehrabi penetrated Ms Turner's vagina with his fingers. She gave the following evidence:33 And did you physically do anything whilst he was putting his fingers into your vagina?---Again, I was lying back and I just was lying there cos I couldn't feel my body or do – like, say much. And why didn't you physically do anything whilst he was putting his fingers in your vagina?---I felt like I couldn't. I felt like I couldn't and I was scared that, like – people were in the house and I was just trying to be, like, just – get it done. Like, I didn't – I didn't know what to do. Sure. [Ms Turner], was that with or without your consent of him putting his fingers into your vagina?---It wasn't with my consent. 54 This evidence formed the basis of count 19. 29 Trial ts 1182. 30 Trial ts 1524. 31 Trial ts 1186. 32 Trial ts 1186 - 1188. 33 Trial ts 1189. -- 16 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 17 55 After this, Ms Turner said that Mr Mehrabi took his pants off and put his penis near her head. Ms Turner said that she pulled his penis for 'a little bit', although she said that she didn't want to do so and 'didn't want to give consent to that'.34 This evidence formed the basis of count 20. 56 Ms Turner gave evidence that, at this point, she was concerned about sexually transmitted infections and said that, if Mr Mehrabi was going to do anything, she wanted him to wear a condom. Ms Turner said that Mr Mehrabi refused to put a condom on and put his penis in her vagina.35 This evidence formed the basis of count 21. 57 Ms Turner said that Mr Mehrabi 'started choking me, pretty much immediately'. She said that Mr Mehrabi had one, and then both, of his hands on her neck and that she had 'more trouble breathing'. She said this lasted for about '10, 15 minutes'.36 This evidence formed the basis of count 22. 58 Mr Mehrabi ejaculated on Ms Turner and she went to sleep. 59 Sometime later, Ms Turner awoke to Mr Mehrabi kissing her and rubbing his penis on her. She said that Mr Mehrabi again put his penis in her vagina. Her evidence continued:37 So were you awake while he put his penis into your - - -?---I was, like – like, in a state of, like, half aware, but I couldn't, like – my body was so, like, sluggish, I couldn't really speak. Okay. And when he put his penis into your vagina when you say you were sort of half-sleep, sluggish, was that with or without your consent?---No, it was without my consent. 60 This evidence formed the basis of count 23. 61 Ms Turner said that while having sex with her on this occasion, Mr Mehrabi again put both hands around her neck and choked her. She said that there was quite a lot of pressure 'similar to the first time, just, like … pressing me against the bed'. The pressure affected her normal breathing.38 This evidence formed the basis of count 24. 34 Trial ts 1190. 35 Trial ts 1191. 36 Trial ts 1192. 37 Trial ts 1194. 38 Trial ts 1195. -- 17 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 18 Mr Mehrabi's evidence 62 As stated above, Mr Mehrabi gave evidence at trial that was in stark contrast to each of the women. That evidence may be summarised as follows. 63 In relation to Ms Campbell, Mr Mehrabi said that he had no conscious memory of using MDMA with her on 23 February 2022, although he said that he couldn't 'rule it out'.39 He denied giving Ms Campbell drugs without her knowledge. Mr Mehrabi agreed that he and Ms Campbell had sex both at the car and in the garden at the front of his house, which he said was consensual. Indeed he said that 'she was actively asking for it'.40 64 In relation to Ms King, Mr Mehrabi denied that he and Ms King had sex at all.41 Indeed, Mr Mehrabi gave evidence that he was not physically attracted to Ms King, who he said had bad breath and that he told her that he didn't feel like having sex.42 65 Mr Mehrabi denied that he had put any drugs in Ms Potter's drink and said that he did not have any MDMA on 4 March 2022.43 He said that they had consensual sex once, effectively at Ms Potter's instigation, but that he lost his erection because 'I just wasn't turned on by her'.44 He said that all of the other sex acts described by Ms Potter did not occur and that he did not do any 'choking-type behaviour with her'.45 66 In relation to Ms Vargas, Mr Mehrabi agreed that he had put his finger into her vagina. He said that before he did so, he asked her 'is that okay' and said that he could 'tell that she was … aroused', although she 'kind of froze' when he became 'a little bit forceful'. He said that he stopped at that point.46 67 In relation to Ms Turner, Mr Mehrabi said that he 'definitely' did not put any drugs in her drink on 11 March 2022.47 He gave evidence that he had no drugs on him that day and had not touched any drugs.48 Mr Mehrabi agreed that he performed cunnilingus on Ms Turner and 39 Trial ts 1638. 40 Trial ts 1640. 41 Trial ts 1679. 42 Trial ts 1663. 43 Trial ts 1690, 1701. 44 Trial ts 1698. 45 Trial ts 1701. 46 Trial ts 1722 - 1723. 47 Trial ts 1737. 48 Trial ts 2024. -- 18 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 19 said that 'she was definitely consenting', and that 'she had her fingers in my hair and she was kind of pulling my face into her vagina'. He also agreed that he had sexual intercourse with her, after she had said 'something along the lines of "Come and fuck me"'.49 Mr Mehrabi also said that it was Ms Turner who suggested other sexual positions. He denied choking her.50 68 Mr Mehrabi also gave evidence in relation to his experience with, and understanding of, the effects of MDMA. In that regard, he agreed that, while he would not narrow its effects to sexual arousal, that was one of its effects. For example, Mr Mehrabi was asked:51 And you knew some of the side effects of MDMA was to give that sense of sexual euphoria as well, correct?---It doesn't – I wouldn't narrow it down to that. I just think it makes you feel very happy, very content, very joy – very joyful, and it does enhance your senses. So your vision, what you hear like music, it enhances the feeling of touch. It makes you feel close with someone. Makes you feel connected. And if you had already felt like you were attracted to a person and you wanted to have sex with them and you take MDMA, it can be quite pleasurable. Yes. And it increases sexual arousal?---It can, yes. And would you agree that when you take the drug, that, of course, artificially creates those feelings of a person, yes? It's a drug which is artificially creating those sensations, yes?---Well, it has this effect on your mind. I think any chemical has an effect on your mind. If you drink coffee, it has an effect on your mind and you feel a bit – bit of a buzz. I guess that's – if you are going to consider that artificial, then my answer would be yes. Expert evidence as to the effects of MDMA 69 The State called expert evidence from Professor Olaf Drummer, a forensic pharmacologist, in relation to the effects of MDMA generally and in relation to the samples taken from Ms Campbell and Ms Turner. 70 In addition to the physical effects of MDMA, Professor Drummer gave evidence that the drug can lead to disinhibition and increased arousal.52 He said that it increases sexual desire and can reduce a person's ability to resist sexual advances.53 Professor Drummer also 49 Trial ts 1740. 50 Trial ts 1741 - 1742. 51 Trial ts 1795 - 1796. 52 Trial ts 1462 - 1464. 53 Trial ts 1464. -- 19 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 20 said that MDMA can affect processing as to whether a person would want to engage in sexual advances54 and reduce the ability to resist sexual assault.55 He agreed in cross-examination that taking MDMA does not automatically eliminate the ability to make a decision about whether to have sex.56 71 In relation to the blood sample taken from Ms Campbell, Professor Drummer said that, based on the concentration of MDMA in her blood at the time that the sample was taken, compared to the time of the alleged offence, 'it would have been quite a high concentration at around the time of the alleged offence'.57 While confirming the difficulty of estimating the dose at that time, Professor Drummer said 'it could represent much more than the standard ecstasy tablet … It could have been double strength or perhaps two capsules, something like that.'58 72 In relation to Ms Turner, whose hair sample was taken many months after March 2022, Professor Drummer gave evidence that, while the sample was positive for the period from February to early May 2022, he was not able to say anything in relation to the purity or dosage.59 Learned trial judge's directions to the jury 73 All of the grounds of appeal, in different ways, relate to the learned trial judge's directions to the jury as to the element of consent in relation to the sexual offences (both the charges of unlawful and indecent assault and the charges of sexual penetration without consent). Directions as to the meaning of consent 74 Given the significance of the element of consent, it is appropriate to set out substantial parts of the learned trial judge's directions of law on that element:60 The State must prove to you beyond a reasonable doubt that the complainant named in the charge did not consent to the alleged act of sexual penetration. It's going to take a while to explain this element, and 'consent' means the same in the indecent assault charges, which I'll 54 Trial ts 1525. 55 Trial ts 1528. 56 Trial ts 1546. 57 Trial ts 1458. 58 Trial ts 1458. 59 Trial ts 1524. 60 Trial ts 2262 - 2266. -- 20 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 21 explain after these sexual penetration without consent charges, so I'll explain the concept to you the once. 'Consent', means consent freely voluntarily given. So it something which is given, and without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means. Where an act is done without the consent of a person, the failure of that person to offer physical resistance does not of itself constitute consent to the act. So consent must be freely and voluntarily given. … Consent is about what is in her mind at the time of the sexual act, whether she is in fact giving her free and voluntary consent to the act. Consent must be given to the particular acts of sexual penetration which occurs on the specific occasion charged. … Consent must be present for the individual sexual act alleged at the time it occurred on that occasion. It is a matter of simple logic that a person who is unaware because they are asleep or unconscious cannot give their consent to any sexual act. Consent must be given. It cannot be given by a person who is unaware through sleep or unconsciousness. To give consent you must be capable of consenting and an asleep or unconscious person is incapable of consenting. A person who is asleep or unconscious cannot consent to anything. Now, this is a case in which intoxication is an issue. You've heard evidence from many of the complainants that they had consumed alcohol sometimes combined with drugs or suspected drugs and felt very affected. … I've already mentioned how alcohol can have an effect on memory. In each charge the time you are judging whether the State has proved the complainant did not consent is the time the sexual act occurred. Lack of memory does not equate to lack of consent. A complainant's inability to remember what happened after the event does not prove that she did not consent to what happened. It may well tell you something about her level of intoxication for the period she does not recall but it does not of itself prove she did not consent. Alcohol affects people in different ways, as you know from your own experience of life. Some people become disinhibited and do things when drunk that they would not do sober. If a woman disinhibited by alcohol or drugs knowingly and willingly taken by her freely and -- 21 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 22 voluntarily consents to something she wouldn't normally consent to if sober she's still given consent. If a person who is voluntarily drunk or voluntarily affected by drugs but still capable of giving or withholding consent freely consents to sexual activity at a time when she is disinhibited and exercising poor judgement that is nevertheless consent. Feeling ashamed or regretful after the event does not alter the fact of consent. Lack of consent at the time of the sexual act is what makes a sexual act non-consensual. But the fact that a woman may voluntarily drink too much and/or voluntarily combine that alcohol with drugs and get herself into a state where she is very affected is not consent to a sexual act. Even where you may think that a woman has made herself physically vulnerable by drinking too much or voluntarily taking drugs that is not consent to a sexual act. A woman may be awake but very intoxicated and physically affected by alcohol or drugs voluntarily taken to an extent that while she is not consenting to a sexual act and knows she is not consenting she is physically incapable of indicating her lack of consent or physically putting a stop to or indicating protest to what is occurring. A woman in that state is not consenting. She is simply too drunk to indicate lack of consent. ... A person may be conscious but so intoxicated as to be incapable of consenting or not consenting and so cannot give a free and voluntary consent. If a person is so intoxicated as to be incapable of agreeing or disagreeing to what is going on, if her mind is so affected that she cannot judge the situation, then she cannot give a free and voluntary consent. If you were to conclude that any particular complainant was so intoxicated by alcohol or drugs voluntarily taken as to be actually incapable of consenting to a sexual act, then you would find that she did not consent to that act. To freely and voluntarily give consent or to withhold consent a person must be capable of exercising a free choice. And if by reason of intoxication by alcohol or drugs or a combination of both or physical illness or extreme fatigue they are incapable of exercising a free and voluntary choice either way, then they are not consenting. Whether a person is in that state, whether they are incapable of either consenting or not consenting is not a question of law, it is a question of fact to be decided by a jury. A person might be drunk or affected by drugs but still be capable of exercising their free choice. This is a question of degree as to whether they are so intoxicated by alcohol or -- 22 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 23 drugs or both as to be incapable of exercising their free choice to consent or not consent. A person who has been drinking even heavily or who has taken drugs can still consent if they are still capable of exercising free choice. But if a person is so under the influence of drugs or alcohol as to be incapable of giving or withholding consent, then she could not consent. And failure to resist does not amount to consent. And short of that level of extreme intoxication, as I said, a woman may be very intoxicated and physically affected by alcohol or drugs voluntarily taken but is not consenting and knows she is not consenting but fails to resist. A woman in that state is not consenting. So far I've been talking about a woman who is intoxicated by alcohol or drugs or both that she has voluntarily taken. I said earlier consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means. If a woman disinhibited by drugs administered to her without her knowledge and permission consents to a sexual act because she is under the influence of that drug, then that consent is not freely and voluntarily given because it is consent obtained by deceit or fraudulent means. That would be the case even if she had also voluntarily consumed alcohol. If the drug she has unknowingly consumed plays a material role in her decision to consent, then that consent is not freely and voluntarily given because consent obtained by deceit or fraudulent means is not consent. To deceive is to deliberately lie. If a man falsely assured a woman the water was safe when he knew it contained drugs or that a glass was just unclean to explain a bad taste when he knew it contained drugs that would be a lie. To engage in fraudulent means in the context of a case like this is to engage in deliberately dishonest behaviour that may not constitute a lie because no actual words are said but constitutes trickery and [indistinct] to consume a drug without her knowledge and permission would constitute fraudulent behaviour. If you consider it reasonably possible that a particular complainant did consent but you are satisfied that the drug she had unknowingly consumed played a material role in her decision to consent, then that is not consent freely and voluntarily given because it is consent obtained by deceit or fraudulent means and that sexual act would be without consent. Consent which is obtained by deceit or fraudulent means is not consent. If on the other hand you were not satisfied that the drug she unknowingly consumed played a material role in her decision to consent, then you would not be satisfied the sexual act was non-consensual. -- 23 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 24 75 Save for the issue of the causal connection required for a complainant's consent to be vitiated by deceit or fraudulent means (which is raised by ground 3), Mr Mehrabi takes no issue with these directions of law in the appeal. 76 In particular, Mr Mehrabi accepted in the appeal that, depending upon which count on the indictment the jury was considering, there were three potential ways in which the State could prove, beyond reasonable doubt, that a complainant did not consent to the sexual activity relevant to that count. 77 The first was what might be described as proof of an absence of free and voluntary consent simpliciter; what Mr Mehrabi in his submission described as 'conscious non-consent'. That is, that the State could prove that the complainant had a particular state of mind; namely that she did not consent to the relevant sexual act. As the learned trial judge said:61 Consent is about what is in her mind at the time of the sexual act, whether she is in fact giving her free and voluntary consent to the act. 78 In his appeal Mr Mehrabi referred to this mode of proof as 'Pathway 1'. 79 All of the complainants (other than Ms Campbell) gave positive evidence that they did not consent to the sexual acts that they described. In the case of Ms King, Ms Potter and Ms Vargas that evidence was clear and unambiguous. They variously described saying 'No', 'Stop', and 'please can we stop' or described being restrained by Mr Mehrabi. If the jury was satisfied as to the credibility and reliability of their evidence, and rejected the evidence to the contrary from Mr Mehrabi (beyond reasonable doubt), there could be no doubt that the relevant sexual acts were done without their consent. 80 For that reason, in relation to Ms King, Ms Potter and Ms Vargas, the learned trial judge directed the jury that proof of the absence of consent in the case of the charges relating to them depended upon whether the jury accepted their evidence that they had not consented, and rejected the evidence of Mr Mehrabi to the contrary. To adopt Mr Mehrabi's terminology in the appeal, in relation to those complainants it was only necessary for the jury to consider 'Pathway 1'. 61 Trial ts 2263. -- 24 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 25 81 The second and third potential ways of the State proving the absence of consent arose, and only arose, in relation to the charges concerning Ms Campbell and Ms Turner; although it must be said that Ms Turner's clear evidence to the effect that she did not consent to the sexual activity – in stark contrast to the evidence of Mr Mehrabi – suggested that the issue of consent in her case was also likely to turn upon the jury's acceptance or otherwise of her evidence (and not on either of the second or third modes of proof). 82 The second way in which the State could prove the absence of consent in the case of Ms Campbell or Ms Turner was if the jury was satisfied that she was relevantly 'so intoxicated by alcohol or drugs or both as to be incapable of exercising [her] free choice to consent or not consent'.62 This manner of proof had a particular relevance in the case of Ms Campbell, who had no memory at all of the sexual activity and described herself as 'blacking out'. Mr Mehrabi referred to this mode of proof as 'Pathway 2'. 83 The final way in which the State could prove the absence of consent in the case of Ms Campbell or Ms Turner was if the jury was satisfied, beyond reasonable doubt, that 'disinhibited by drugs administered to her, without her knowledge and permission, [she] consent[ed] to a sexual act because she [was] under the influence of that drug', in which case 'that consent [was] not freely and voluntarily given because it is consent obtained by deceit or fraudulent means'.63 84 This mode of proof engages the definition of 'consent' in s 319(2)(a) of the Criminal Code, namely that, for the purposes of sexual offences: consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means. (emphasis added) 85 It will be immediately apparent that this definition of consent suffers from the difficulty that the definition itself includes the word 'consent' in a way that is intended to convey a different meaning to the defined term. That is, the definition makes clear that a 'consent' (in the general sense of an agreement to something) obtained by deceit or any fraudulent means is not consent (as defined) at all. To keep this distinction clear, references in what follows to 'consent' (in quotation 62 Trial ts 2265. 63 Trial ts 2266. -- 25 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 26 marks) are references to the vitiated state of mind that is affected by deceit or fraudulent means (rather than free and voluntary consent). 86 This mode of proof would arise, as her Honour put it, if the jury considered it a 'reasonable possibility' that Ms Campbell or Ms Turner did 'consent' (in the sense that her state of mind was to agree to the sexual act) but were satisfied that this 'consent' was the result of a drug that she had unknowingly consumed. Mr Mehrabi referred to this mode of proof as 'Pathway 3'. Directions as to tendency reasoning 87 Prior to directing the jury, the learned trial judge heard submissions from the parties in relation to what was described as 'cross-admissibility', namely the extent to which proof of one charge might be admissible in the proof of other charges. 88 In that context, the learned trial judge expressed the view that, if the jury found beyond reasonable doubt that Mr Mehrabi had committed a sexual offence against one complainant, such a conclusion would be cross-admissible in respect of other alleged sexual offences in relation to the other complainants, not in relation to the issue of consent, but rather, as to his willingness to have sex with a woman who was not consenting or his belief system about what constituted consent. Defence counsel agreed with that proposition.64 89 This discussion formed the basis of the learned trial judge's directions in relation to 'tendency reasoning'. Her Honour directed the jury:65 [I]f you do come to be satisfied beyond a reasonable doubt that the accused is guilty of one of the sexual offences charged, whether that is an indecent assault or a sexual penetration without consent, then you would be entitled to find that he had a tendency to engage in sexual acts with a woman without her consent, and not having an honest and reasonable belief that she was consenting, and you would be entitled to reason that he was objectively more likely to have acted in that same way in relation to a different complainant. That is so, even if the charge you have found proven beyond a reasonable doubt occurred later in time than the other charges, because these events all took place within a time frame of one month, and you would be entitled to reason that any tendency the accused may have had in March 2022, he had in February 2022 and vice versa. I'll 64 Trial ts 2169 - 2170. 65 Trial ts 2320. -- 26 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 27 remind you, the focus here is what was on – what was in the accused's mind. 90 The learned trial judge went on to direct the jury, in orthodox terms, that it was a matter for them to determine whether Mr Mehrabi had a tendency to act in a particular way and that it did not automatically follow that if Mr Mehrabi did have a tendency, he acted on that tendency on a particular occasion. Her Honour repeated in that context that each charge had to be proven beyond reasonable doubt.66 91 As will be apparent, by ground 1 Mr Mehrabi challenges the proposition that a finding by the jury that he was guilty of an offence against either Ms Campbell or Ms Turner on the basis of what he referred to as 'Pathway 3' was probative of a tendency to engage in sexual acts with a woman without her consent (i.e. 'Pathway 1'). Mr Mehrabi did not otherwise challenge the directions as to 'tendency reasoning'. 92 In that context, it may be observed that the tendency directions given by the learned trial judge were, in one respect, more favourable to Mr Mehrabi than the law requires. As will be apparent, her Honour directed the jury that before they could use evidence relating to an offence as tendency evidence, they must be satisfied beyond reasonable doubt that the particular offence was committed. As the High Court's decision in Director of Public Prosecutions v Roder (a pseudonym)67 has made clear, however, an alleged tendency is an intermediate fact which need not be proved beyond reasonable doubt (unless it is indispensable to proof of guilt).68 In confining the use of tendency reasoning to a charged sexual offence found proved beyond reasonable doubt (i.e. a sexual offence of which Mr Mehrabi was guilty) the trial judge's direction in the present case was to the effect that the jury must be satisfied that evidence relied upon as propensity evidence must be proved beyond reasonable doubt. The direction was therefore favourable to Mr Mehrabi. Directions as to honest and reasonable mistake 93 In addition to his primary case that the complainants had consented to any sexual activity with him, Mr Mehrabi also relied upon 66 Trial ts 2321 - 2322. 67 Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 281 CLR 18 (Roder). 68 Roder [24], [26] - [28], [31] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot & Beech-Jones JJ). See also The King v AR [2026] HCA 10; (2026) 428 ALR 646 [6] - [8] (Gageler CJ, Gleeson & Beech-Jones JJ); [76] (Gordon & Steward JJ). -- 27 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 28 the defence of honest and reasonable, but mistaken, belief as to their consent in relation to the sexual acts the subject of those charges. The learned trial judge gave detailed directions to the jury in relation to that defence, as to which (for the most part) Mr Mehrabi makes no complaint in the appeal. 94 In the course of those directions, however, her Honour said that the defence of honest and reasonable belief could not apply in circumstances in which the complainant gave apparent 'consent' because Mr Mehrabi had secretly drugged her. Her Honour said:69 If the accused honestly believed that the complainant was consenting because he had spiked her drink and secretly given her a drug and believed that under the influence of that drug she would be consenting because that is how the drug affects people, that would not be an honest but mistaken belief as to a fact. That would be a mistaken belief as to the law as to what constitutes free and voluntary consent. If he were to believe that a woman influenced by a drug that he secretly gave her to consent to sexual behaviour was therefore consenting, that would be a mistake of law and not a mistake of fact. And this concept of honest and reasonable but mistaken belief in her consent does not apply to that sort of ignorant view of the law. But it does apply to an honest belief that a woman was freely and voluntarily consenting in the knowledge that she had been drinking and/or in the knowledge that she had been drinking and had voluntarily taken drugs. 95 Mr Mehrabi challenges this direction in ground 2. Grounds of appeal 96 The grounds of appeal are as follows. Ground 1 (cross-admissibility ground) 1. The trial judge made a wrong decision on a question of law in directing the jury that evidence that the appellant had committed a sexual offence constituted by any of counts 3, 4, 18, 19, 20, 21 or 23 was admissible to support proof of sexual offences constituted by any of counts 6, 7, 9, 10, 11, 13 or 16, when that was only the case if the jury accepted that those offences had been committed in a particular way. Alternatively, the trial judge's failure to direct the jury correctly on this issue occasioned a miscarriage of justice. 69 Trial ts 2269. -- 28 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 29 Particulars (a) The trial judge directed the jury in respect of the sexual offences the appellant faced that the State could prove the element of non-consent in one of three ways (not all of which were open on each of the sexual offence counts): i. The complainant had consciously not consented to the sexual act grounding the offence in question (Pathway 1); ii. The complainant had been too intoxicated by drugs and/or alcohol, whether voluntarily consumed or not, to give free and voluntary consent to the sexual act (Pathway 2); or iii. The appellant had given the complainant MDMA without her knowledge or consent, and although she had in fact consented to the sexual act, her consent was obtained by deceit or fraudulent means, and was therefore not a legally valid consent (Pathway 3). (b) The trial judge left pathways 1, 2 and 3 to the jury in respect of the sexual offences against complainant LC (counts 3 and 4) and LT (counts 18, 19, 20, 21 and 23); (c) The trial judge did not direct the jury that it had to be unanimous as to which of the above bases or pathways proved the element of non-consent; (d) The trial judge directed the jury that, if it found the appellant guilty of a sexual offence concerning one complainant, it could use that conviction to support a conviction of a sexual offence against another complainant on the basis of tendency or propensity reasoning; (e) The different pathways did not constitute evidence supporting the same tendency, but rather two different tendencies, and the tendency shown by an offence committed via pathway 3 was not properly admissible in proof of a sexual offence committed via pathway 1 or 2; (f) Given the trial judge's directions to the jury on how convictions on the sexual offence counts could be used to support convictions on the other counts, the error -- 29 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 30 affected the verdicts on all the counts of which the appellant was convicted. Ground 2 (mistake direction ground) 2. The trial judge made a wrong decision on a question of law in failing to direct the jury that, in respect of counts 3, 4, 18, 19, 20, 21 or 23, the prosecution had to negate an excuse of mistake of fact as to consent in circumstances where the jury found that consent was vitiated by the use of deceit or fraudulent means. Alternatively, the trial judge's failure to direct the jury correctly on this issue occasioned a miscarriage of justice. Particulars (a) The trial judge directed the jury that, if the complainant's consent to the sexual act comprising counts 3, 4, 18, 19, 20, 21 or 23 was obtained by her unknowing consumption of MDMA, that consent was vitiated by the use of deceit or fraudulent means, such that any mistake as to that consent on the part of the appellant was a mistake of law, not a mistake of fact, and thus not a defence to that charge; (b) However, if the appellant honestly and reasonably believed that the complainant was consenting, and that the consent was not in fact caused by her consumption of MDMA, then a defence of mistake of fact was properly open; (c) Given the trial judge's directions to the jury on how convictions on the sexual offence counts could be used to support convictions on the other counts, the error affected the verdicts on all the counts of which the appellant was convicted. Ground 3 (causation direction ground) 3. The trial judge made a wrong decision on a question of law in failing to direct the jury adequately as to the element of causation in respect of counts 3, 4, 18, 19, 20, 21 or 23. Alternatively, the trial judge's failure to direct the jury correctly on this issue occasioned a miscarriage of justice. Particulars (a) The trial judge was required to direct the jury that, in order for the complainant's consent to be vitiated by the use of deceit or fraudulent means, the requirements of factual and legal causation had to be satisfied; -- 30 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 31 (b) The trial judge erred in failing to direct the jury that factual causation required the prosecution to prove that, absent the appellant's deceit or fraudulent means, the complainant would not have consented to the sexual act the subject of the relevant count; (c) The trial judge also erred in failing to direct the jury that legal causation required the factual connection between the appellant's conduct and the decision to consent to be sufficient to justify the attribution of criminal responsibility to the appellant for it; (d) Given the trial judge's directions to the jury on how convictions on the sexual offence counts could be used to support convictions on the other counts, the error affected the verdicts on all the counts of which the appellant was convicted. 97 As will be apparent, all of the grounds of appeal are concerned, in different ways, with what Mr Mehrabi refers to in ground 1 as 'Pathway 3'; namely the possibility that the jury might have reasoned to a verdict of guilt in relation to the sexual offences against Ms Campbell or Ms Turner, on the basis that the jury considered it a 'reasonable possibility' that Ms Campbell or Ms Turner did 'consent' (in the sense that her state of mind was to agree to the sexual act) but were satisfied that her 'consent' was the result of Mr Mehrabi having fraudulently and secretly given her MDMA. 98 The errors alleged by the grounds of appeal, therefore, all involve the potential for improper reasoning arising from the jury having followed 'Pathway 3' in relation to the offences alleged against Ms Campbell or Ms Turner. 99 As is clear from the final particular in each ground of appeal, Mr Mehrabi nevertheless contends that an error in the directions in relation to 'Pathway 3' had the capacity to affect the verdict on the other counts, in light of the learned trial judge's directions as to 'cross-admissibility'. This is undoubtedly correct: any error in relation to the directions concerning any of the sexual offences alleged in the indictment in this case could, at least theoretically, have affected the jury's verdicts in relation to the other charges. 100 Nevertheless, we would make the following observations in relation to the focus of the appeal. -- 31 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 32 101 First, while the focus of the parties' and the Court's attention in the appeal, was, naturally, on what Mr Mehrabi referred to as 'Pathway 3', that focus might mistakenly be thought to suggest that 'Pathway 3' did more 'heavy lifting' in the jury's deliberations than was likely to have been the case. As we have noted above, other than Ms Campbell (who had no memory of the sexual activity the subject of the charges), all of the complainants gave positive evidence that they did not consent to the sexual acts that they described. Given the irreconcilable differences in their evidence compared to that of Mr Mehrabi, it is likely that the overwhelming bulk (if not all) of the factual issues in the case would have been determined by whether the jury were satisfied to the requisite standard of the credibility and accuracy of the complainant's evidence. 102 In that regard, it may be noted that none of the complainants in fact gave evidence consistent with 'Pathway 3'. That is, none of them said that they wanted, or consented to, any of sexual activity, because of what may have been the effects of drugs that they had taken without their knowledge. In that regard, it is clear that this possibility was left to the jury as a 'possible inference' based on the effects of MDMA and the absence of Ms Campbell's (and to a lesser extent, Ms Turner's) memory of the events. It was also, of course, a possibility positively disavowed by Mr Mehrabi in his own evidence. 103 This is not to suggest that an error in the learned trial judge's directions in relation to 'Pathway 3' could simply be ignored. Nevertheless, the above matters are relevant to the form in which those directions should be given, and the extent of the detail of those directions. They might also affect the materiality of any error that might be identified and the extent to which any alleged error could realistically have affected the reasoning of the jury to a verdict of guilty.70 104 The second general observation we would make in relation to the grounds of appeal relates to the use of the terminology 'pathway' for the three ways in which the State could prove the absence of consent in the case of Ms Campbell and Ms Turner. Both parties adopted the shorthand, 'Pathway 1', 'Pathway 2' and 'Pathway 3' in their submissions. As a matter of convenience, and properly understood, the use of this shorthand proved useful in the hearing of the appeal. 70 Brawn v R [2025] HCA 20; (2025) 99 ALJR 872 [10] (Gageler CJ, Edelman, Steward, Gleeson, Jagot & Beech-Jones JJ). -- 32 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 33 105 It is important to note, however, that the use of this shorthand (which does not appear in the learned trial judge's directions) should not be understood as suggesting three separate and distinct or independent forms of criminal liability.71 On the contrary, the three 'pathways' referred to by the parties were, in truth, simply aspects of the meaning of 'free and voluntary consent' and, in the factual context of the trial, there was considerable overlap in their application. Indeed, in the factual context of the prosecution case, the so-called 'pathways' were presented more as alternative, and cumulative, means by which Mr Mehrabi sought to overcome what might otherwise have been the unwillingness of the complainants to engage in sexual activity with him. That is, the State contended that Mr Mehrabi fraudulently used drugs to obtain their apparent 'consent', but that where that method was ineffective, he simply ignored the complainant's will. In this way, the three 'pathways' left to the jury in relation to Ms Campbell and Ms Turner were not exclusive of each other. 106 With these general observations, we turn to the grounds of appeal. Ground 1 – tendency reasoning 107 Ground 1 relates to the learned trial judge's directions in relation to tendency reasoning. Mr Mehrabi's core complaint was that not all of the sexual offences were necessarily manifestations of the same tendency.72 108 Mr Mehrabi accepted that 'pathways 1 and 2' were not materially different and that the tendency of Mr Mehrabi to act in accordance with one of those pathways was admissible in support of an allegation that he did so in support of the other. That is, he accepted that 'Pathway 1' and 'Pathway 2' supported the same tendency. 109 He submitted, however, that a finding based on 'Pathway 3' was materially different, namely, that: 73 That pathway contemplates a complainant who does make a choice to consent, but whose choice is vitiated in law because the accused has used deceit or fraudulent means to obtain consent, and the deceit or fraudulent means causes the consent to be given in the sense provided for by law. (emphasis in original) 71 As is sometimes the case in the use of what has been described as a 'separate pathways direction': see Gandy v The State of Western Australia [2017] WASCA 93. Notwithstanding particular (c) in ground 1, Mr Mehrabi did not suggest that the learned trial judge ought to have given a 'separate pathways direction' (Appeal ts 5). Ground 1 was confined to the issue of the directions as to tendency. 72 Appellant's Submissions [33] (WAB 20). 73 Appellant's Submissions [35] (WAB 21). -- 33 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 34 110 Mr Mehrabi later put the point as being that:74 a tendency to engage in sexual acts with a person who is positively unwilling, or who is incapable of expressing willingness (or deciding whether they are willing) is not the same as, and is not probative of, a tendency to engage in sexual acts with a person who is positively willing, especially when there is no suggestion that their willingness stems from a misunderstanding of what they are doing or with whom they are doing it. 111 As senior counsel for Mr Mehrabi confirmed at the hearing of the appeal, the impermissible reasoning alleged by this ground of appeal was in reasoning from a conclusion that Mr Mehrabi had obtained Ms Campbell or Ms Turner's 'consent' by deceit or fraudulent means (Pathway 3) to a finding that he thereby had a tendency to engage in sexual acts with women without their consent (Pathway 1). Counsel accepted that it was not impermissible to reason in the opposite direction (that is, it was not impermissible to reason that a person who had engaged in sexual acts without a woman's consent (Pathway 1) thereby had a tendency to obtain 'consent', and engage in sexual acts, by deceit or fraudulent means (Pathway 3).75 112 At the hearing of the appeal, counsel for Mr Mehrabi also referred to the decision of New v R,76 as illustrative of the fact that a tendency to engage in sexual activity with women without their consent is not an indivisible tendency. In that case the relevant tendency sought to be established by the prosecution was a 'tendency to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated or drug affected) with his hand and/or penis'.77 While the Court in New v R concluded (by majority) that the alleged tendency had significant probative value, it also held that evidence of uncharged sexual touching of a conscious woman was not probative of that tendency.78 113 We reject ground 1, for the following reasons. 114 First, it is to be recalled, in the present case, that the tendency the subject of the learned trial judge's directions was a tendency 'to engage in sexual acts with a woman without her consent'. While expressed at a relatively high level of generality, Mr Mehrabi did not contend that 74 Appellant's Submissions [40] (WAB 22). 75 Appeal ts 15. 76 New v R [2025] NSWCCA 32 (New v R). 77 New v R [174] (Dhani J; Mitchelmore JA agreeing). 78 New v R [245] - [250] (Dhani J; Mitchelmore JA agreeing). -- 34 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 35 a tendency in those terms would not be probative of (in the sense of increasing the likelihood of the commission of) the offences against any of the complainants (that is, that a tendency in those terms was probative of the likelihood that he would act in circumstances consistent with Pathway 1, Pathway 2 or Pathway 3). 115 New v R may be distinguished on this basis. That case was not concerned with whether a tendency 'to engage in sexual acts with a woman without her consent' could be probative of a charged offence. It was concerned with whether particular evidence was probative of the tendency alleged in that case. 116 In that regard, in assessing the probative value of putative tendency evidence, it is necessary to consider the two interrelated but separate matters identified by the High Court in Hughes v The Queen:79 The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. 117 Understood in this conceptual framework, therefore, ground 1 was concerned with the first of these matters: namely whether, the evidence (and indeed the acceptance of the evidence) in support of 'Pathway 3' in relation to Ms Campbell and Ms Turner supported (i.e. was probative of) the tendency 'to engage in sexual acts with a woman without her consent'. 118 So understood, in our view, acceptance of the evidence in support of 'Pathway 3' in relation to Ms Campbell or Ms Turner was clearly probative of the tendency identified by the learned trial judge. 119 If, as the learned trial judge had directed the jury (in Mr Mehrabi's favour), the jury was satisfied that he had sexually penetrated Ms Campbell or Ms Turner by fraudulently obtaining her consent, by secretly drugging her for that purpose, that conclusion was significantly probative of a tendency on Mr Mehrabi's part to engage in sexual acts with a woman without her consent. In particular, such a conclusion supported a finding that Mr Mehrabi had a tendency, as the State put it, to 'disregard the right of a woman to bodily autonomy and to make a free and voluntary choice about consenting to sexual acts'.80 Indeed, such a finding provided particularly strong support for such a tendency, 79 Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41] (Kiefel CJ, Bell, Keane & Edelman JJ). 80 Respondent's Submissions [33] (WAB 47). -- 35 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 36 given that it supported the conclusion that Mr Mehrabi's disregard of the woman's autonomy was planned and premeditated. Given that the tendency was, as the learned trial judge put it, concerned with 'what was in the accused's mind', the calculated deceit involved in Pathway 3 was especially probative of the alleged tendency. 120 In the same way, Mr Mehrabi's contention that a finding that he was guilty of a sexual offence against Ms Campbell or Ms Turner on the basis of deceit or fraudulent means is equivalent to a finding of 'a tendency to engage in sexual acts with a person who is positively willing'81 must be rejected. That characterisation elides the very tendency inherent in the conduct, which is to circumvent the woman's free and voluntary choice to engage in sexual activity by secretly drugging them. 121 Of course, whether the jury concluded that Mr Mehrabi in fact had the tendency alleged, or whether he acted on that tendency in relation to any particular count were, as the learned trial judge made clear, a matter for the jury to determine. In that context, no doubt, the particular conclusions that the jury may have reached in relation to any particular offence would inevitably affect the extent to which either of those matters were established. 122 Nevertheless, the learned trial judge did not err in directing the jury that they could rely upon such conclusions in that way and, in so far as her Honour directed the jury that they could only do so if satisfied beyond reasonable doubt as to such a conclusion, the direction operated in Mr Mehrabi's favour. 123 While we would grant leave to appeal on ground 1, the ground must be rejected. 124 It is convenient, next, to consider ground 3. Ground 3 – causation in the case of vitiated 'consent' 125 Ground 3 contends that the learned trial judge failed to give adequate directions in relation to the causal connection required to establish that Ms Campbell or Ms Turner's 'consent' was obtained by deceit or fraudulent means. 126 As set out at [74] above, her Honour directed the jury that, in the case of 'consent' obtained by deceit or fraudulent means that the jury 81 Appellant's Submissions [40] (WAB 22). -- 36 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 37 must be satisfied that the drug that she unknowingly consumed played a material role in her 'consent'. To repeat, her Honour directed the jury:82 If you consider it reasonably possible that a particular complainant did consent but you are satisfied that the drug she had unknowingly consumed played a material role in her decision to consent, then that is not consent freely and voluntarily given because it is consent obtained by deceit or fraudulent means and that sexual act would be without consent. Consent which is obtained by deceit or fraudulent means is not consent. If on the other hand you were not satisfied that the drug she unknowingly consumed played a material role in her decision to consent, then you would not be satisfied the sexual act was non-consensual. (emphasis added) 127 Mr Mehrabi contends that this direction was in error, first, as it did not make clear that the State needed to prove that, absent Mr Mehrabi's deceitful administration of drugs to the complainant without her knowledge, she would not have consented to the sexual penetration. 128 In this regard, Mr Mehrabi relied, in particular, upon the following passage from Buss P's reasons for decision in HES v The State of Western Australia:83 In my opinion, the text, context and apparent purpose of the definition do not indicate that it will be sufficient to vitiate the complainant's express or implied consent if the accused's deceit or fraudulent means was merely an inducing factor (even a substantial or significant inducing factor) in the complainant giving their express or implied consent. The State must prove that, absent the accused's deceit or fraudulent means, the complainant would not have expressly or impliedly consented to the sexual penetration. The complainant's express or implied consent will not be freely and voluntarily given and, consequently, the sexual penetration will be non-consensual if, without the relevant deceit or fraudulent means, the complainant would not have expressly or impliedly consented to the penetration. 129 Relatedly, Mr Mehrabi submitted that, by analogy with the requirements of causation in the case of an offence of fraud under s 409 of the Criminal Code, the learned trial judge ought to have directed the jury that the connection between his conduct (in deceitfully administering drugs to the complainant without her knowledge) and the 82 Trial ts 2266. 83 HES v The State of Western Australia [2022] WASCA 151; (2022) 59 WAR 391 (HES v The State of Western Australia) [126] (Buss P). -- 37 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 38 decision to 'consent' was sufficient to justify the attribution of criminal responsibility to Mr Mehrabi for his conduct (what Mr Mehrabi referred to as 'legal causation').84 In that context, Mr Mehrabi referred to the application of the principles of causation in relation to 'cause of death' to s 409 of the Criminal Code in Skelly v The State of Western Australia.85 Ground 3 – discussion 130 There is a paucity of authority in relation to the necessary causal connection between deceit or fraudulent conduct on the part of an accused and a vitiated 'consent' for the purposes of the definition of consent in s 319(2)(a) of the Criminal Code. 131 That the definition draws attention to some causal connection is indicated by the words 'obtained by' that appear in the definition. Nevertheless, it must be appreciated, in this context, that the causal connection contemplated by s 319(2)(a) is not a separate element of the offence that must be proven by the prosecution, as in the case, for example, of the need to prove 'cause of death' in a charge of murder, or that a pecuniary benefit was obtained 'by' fraud or deceit in a charge of fraud. On the contrary, the 'causal' inquiry forms part of the definition of what constitutes 'free and voluntary' consent. The ultimate question, as s 319(2)(a) of the Criminal Code makes clear (i.e. 'without in any way affecting the meaning attributable to those words'), is whether the State has proven the absence of 'consent freely and voluntarily given'. 132 The only authority identified by the parties that considers the issue is HES v The State of Western Australia. As will be seen, however, HES v The State of Western Australia was concerned with very different circumstances and, in any event, the observations in that case in relation to the relevant causal connection in s 319(2)(a) of the Criminal Code were obiter dictum. 133 Similarly, as we will also address, in light of its statutory context it is necessary to exercise some caution in seeking to apply the principles of causation developed in relation to 'cause of death' and cases of fraud to the assessment as to whether an apparent 'consent' is not a 'free and voluntary consent' because it is obtained by deceit or fraudulent means. 134 It is convenient, first, to address HES v The State of Western Australia. 84 Appellant's Submissions [78] (WAB 30). 85 Skelly v The State of Western Australia [2020] WASCA 3. -- 38 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 39 135 The State case in HES v The State of Western Australia was that the appellant was guilty of a series of sexual offences against a number of women on the basis that their consent was obtained by 'deceit or fraud'. The alleged 'deceit or fraud' was the representation to the women that 'what he was doing was part of genuine Aboriginal cultural practice, tradition or custom', for purposes including protection, healing or initiation.86 The appellant's case was that any sexual activity between him and the complainants was consensual and had nothing to do with cultural practices. 136 Following his convictions, the appellant in HES v The State of Western Australia appealed the convictions. The appeal was allowed on five grounds, four of which concerned unfairness in the trial as a result of the prosecutor's cross-examination of the appellant, the conduct of defence counsel and comments by the trial judge. One of the successful grounds of appeal (ground 1), however, was that the trial judge had erred in his directions in relation to the issue of consent. The particular error identified was that the trial judge had erred in failing to direct the jury that the State was required to prove, in the case of an implied representation, that the appellant subjectively intended to make the representation.87 137 The nature of the causal connection required by the phrase 'obtained by' in s 319(2)(a) of the Criminal Code was not the subject of any of the grounds of appeal in HES v The State of Western Australia. Nevertheless, each member of the Court, to varying degrees, expressed views in relation to that issue. 138 Buss P's reasons for decision, in particular, from paragraphs [25] to [128], contained an exhaustive review of the law in relation to consent to sexual activity obtained by fraud or deception, from the common law, the legislative history of the Criminal Code, and the decided cases (in this State and elsewhere). Most of that review (from [25] to [122]) was concerned with the meaning of 'deceit' or 'fraudulent means' and not with the causal connection between those matters and a vitiated 'consent'. 86 HES v The State of Western Australia [13] - [14] (Buss P). 87 HES v The State of Western Australia [129] (Buss P), [216], [244] (Mitchell JA), [135], [138] (Mazza JA). -- 39 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 40 139 Buss P's discussion of that issue was confined to the following paragraphs, leading to the conclusion at [126] (reproduced at [128] above):88 [123] The words 'obtained by' in the definition of 'consent' indicate that a complainant's express or implied consent will, as a matter of law, be no consent if the accused procured the consent and the complainant was induced to consent by the relevant deceit or fraudulent means. [124] The factual connection that is required between the accused's deceit or fraudulent means, on the one hand, and the complainant's express or implied consent, on the other, must be determined having regard to the text, context and apparent purpose of the definition of 'consent' in s 319(2)(a). [125] The text of the extended definition of 'consent' does not specify the nature or extent of the required factual connection. The context includes that the extended definition of 'consent' is concerned with the attribution of criminal responsibility; in particular, with whether the factual connection between the dishonesty of the accused and the express or implied consent of the complainant is sufficient to justify moral culpability and, therefore, criminal responsibility. The apparent purpose of the extended definition of 'consent' was to reform significantly the previous strict approach to the vitiation of consent and to expand significantly the circumstances in which consent would be vitiated. 140 Later in his Honour's reasons Buss P summarised his conclusions as follows:89 [131] A complainant's consent to the accused's alleged indecent act or alleged sexual penetration will have been obtained by deceit or any fraudulent means if the State proves each of the following facts beyond reasonable doubt: (a) The accused made the alleged representation. (b) The accused intentionally made the alleged representation. (c) The alleged representation was false. (d) The accused knew that the alleged representation was false. 88 HES v The State of Western Australia [123] - [125] (Buss P). 89 HES v The State of Western Australia [131] (Buss P) -- 40 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 41 (e) The complainant believed that the alleged representation was true. (f) If the alleged representation had not been made, the complainant would not have consented to the accused's alleged indecent act or alleged sexual penetration. 141 As will be apparent, it was the second of these requirements with which HES v The State of Western Australia was concerned, namely that the 'accused intentionally made the alleged representation'. 142 Mitchell JA's reasons for decision in relation to ground 1 in HES v The State of Western Australia were focussed on this issue of 'intention' and a related question as to whether the State was required to prove that the accused must have intended the representation to induce consent (his Honour concluded that it did not).90 143 While Mitchell JA did not discuss the causal connection between fraud or deceit and a vitiated 'consent' in detail, his Honour did agree that, 'in a case of deceit or fraud based on an implicit representation of fact', 'ordinarily' a jury should be directed in the terms set out by Buss P at [131].91 His Honour formulated the final matter in slightly different terms as, that 'the complainant was induced by the representation to consent to the charged sexual act when he or she would not otherwise have done so'. 144 Mazza JA relevantly agreed with Mitchell JA's reasons for upholding ground 1 in HES v The State of Western Australia, and agreed that 'ordinarily' it is enough to direct a jury in the terms stated by Buss P and Mitchell JA.92 145 In relation to the authority of HES v The State of Western Australia, for the proposition that, in the present case, it was necessary for the jury to be instructed that the State needed to prove that, absent Mr Mehrabi's deceitful administration of drugs to Ms Campbell or Ms Turner without her knowledge, she would not have consented to the sexual penetration, we would make the following observations. 146 First, it is clear that all of the references to the causal connection between fraud or deceit and a vitiated 'consent' in HES v The State of Western Australia were obiter dicta. The ratio of the case, as it related to the definition of consent, was that the State must prove that the 90 HES v The State of Western Australia [216] - [242] (Mitchell JA). 91 HES v The State of Western Australia [243] - [244] (Mitchell JA). 92 HES v The State of Western Australia [135] - [138] (Mazza JA). -- 41 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 42 accused intended to make any implied representation. The Court was not required in that case to express any concluded view as to the form of the direction in relation to the causal connection required by the words 'obtained by' in s 319(2)(a) of the Criminal Code. 147 Secondly, save for the general statement in the second sentence in Buss P's reasons at [126], the summary of appropriate directions referred to by Buss P and Mitchell JA (and agreed by Mazza JA) were clearly confined to a case in which the relevant deceit or fraudulent means was a 'representation of fact'. Mitchell JA's summary was expressly so confined and the components of Buss P's summary were all formulated by reference to the 'alleged representation'. 148 It is therefore clear, in our view, that those summaries were not intended to apply to a case of 'deceit or fraudulent means' that does not involve a representation, such as the present case. The 'fraudulent means' in the present case were Mr Mehrabi's actions in, deceitfully, causing the intoxication of women by MDMA without their knowledge or consent. As we will come to, the issues arising in such a case are very different to those in relation to a 'representation of fact'. 149 Thirdly, as both Mazza and Mitchell JJA made clear in their reasons, the summary of directions referred to by them was expressly said to 'ordinarily' apply. Their Honours were not proposing an invariable rule as to the matters that should be the subject of a direction. Less still were their Honours identifying the form in which a direction as to the causal connection between fraud or deceit and a vitiated 'consent' should take. 150 In that context, insofar as Buss P's reasons at [126] of HES v The State of Western Australia might be thought to suggest that, in every case, it is necessary for the jury to ask the counterfactual question as to whether 'absent the accused's deceit or fraudulent means, the complainant would not have expressly or impliedly consented to the sexual penetration',93 in our view, that suggestion should not be followed. Indeed, in many cases, to pose such a counterfactual would be inappropriate. 151 The factual circumstances of the present case, in our view, illustrate why that is the case. 93 HES v The State of Western Australia [126] (Buss P). -- 42 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 43 152 In the paradigm case contemplated by HES v The State of Western Australia and the other cases considered by Buss P in that case, the fraud or deception is logically severable from the capacity of the complainant to make a free and voluntary decision. A false representation of fact (of any kind) distorts the information upon which a person with an intact and unimpaired decision-making capacity is able to make a free and voluntary choice. The counterfactual posed by Buss P might be meaningful in such a case because the complainant's decision-making capacity was unaffected; that is, the jury could meaningfully ask what the complainant, in full possession of her decision-making capacity, would have done had she known the truth. Indeed in such a case, the complainant would ordinarily give evidence in relation to that question. 153 The deceitful administration of a drug that impairs or distorts (although does not remove) the complainant's decision-making capacity (in the sense, for example, that it affects processing as to whether to engage in sexual advances),94 however, is in a different category. In such a case, the effect of the drug does not distort the information upon which the complainant is able to make a decision. It distorts the perception, processing and decision-making involved in making a free and voluntary choice itself. In those circumstances to pose a counterfactual as to what the complainant would have done in different circumstances is, in our respectful view, incoherent. Applied to the present case, for example, it would have been meaningless to ask what Ms Campbell or Ms Turner would have chosen had their decision-making process been unimpaired, because their impaired decision-making process itself is what amounts to the absence of 'consent freely and voluntarily given'. 154 This leads to another difficulty in seeking to apply, by analogy, the requirements of causation in the case of an offence of fraud under s 409 of the Criminal Code. In such a case the relevant causal inquiry is quite different and relates to the connection between the deceit or fraud and one of the circumstances enumerated in s 409(a) to (f), such as delivering property, the giving of a benefit or entering into a transaction. In such a case, while a decision made by the victim of the fraud may be a relevant (and, indeed, necessary) part of the causal inquiry, the causal inquiry is concerned with the connection between the fraud and the event (such as the transaction), and not the victim's state of mind as such. In those circumstances the counterfactual matters 94 See [70] above. -- 43 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 44 because what is in issue is whether the deceit or fraud caused the relevant act to occur at all. 155 In a case such as the present, by contrast, the causal question is not directed at the act of sexual penetration but at the mental state of the complainant at the time of that act. The question is whether the drug administered by deceit materially impaired or distorted (although did not remove) the capacity of the complainant to give free and voluntary consent. If it did, the complainant's apparent 'consent' was not consent in law – it was the product of an impaired or distorted capacity for free and voluntary choice. In those circumstances, it is neither necessary nor appropriate to ask what the complainant would have chosen had she not been drugged. That question posits the very circumstances – unimpaired decision-making, full knowledge – which define genuine consent and which the deceit or fraudulent conduct had impaired. The law's concern is not what the complainant in such a case would have decided in different circumstances but whether she exercised a free and voluntary choice in the actual circumstances. 156 For these reasons, in our view, in a case such as the present, the relevant causal question in relation to the issue of consent is whether the deceitfully administered drug affected the decision-making of the complainant to such an extent that any apparent 'consent' that they gave could no longer be properly described as free and voluntary. That question is focussed on the actual state of mind of the complainant at the time of the sexual penetration and asks whether it was 'caused by' (i.e. 'obtained by') the deceitful administration of the drug, rather than on what would have been the complainant's state of mind had the circumstances been entirely different. 157 An alternative way of approaching this issue is to return to the observation we made at [131] above, namely, that the ultimate question, as s 319(2)(a) of the Criminal Code makes clear (i.e. 'without in any way affecting the meaning attributable to those words'), is whether the State has proven the absence of 'consent freely and voluntarily given'. 158 In that regard, there is much to be said for the proposition that, generally speaking, where a person is involuntarily intoxicated, any 'consent' to sexual activity given by that person is not 'consent freely and voluntarily given', unless it can be said that the involuntary intoxication did not materially affect any decision to engage in sexual activity. According to such an approach (which in our view has much to recommend it) involuntary intoxication (to a material extent) would -- 44 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 45 generally equate to the absence of consent, regardless of whether it was 'obtained by' deceit or fraudulent means (as, for example, where the person is involuntarily intoxicated by accident or by the actions of a person other than the accused). In such a case the criminal responsibility of a person accused of a sexual offence against such a complainant, in circumstances in which the accused had no knowledge of the involuntary intoxication, would fall to be determined by reference to the application of s 24 of the Criminal Code (i.e. that the accused honestly and reasonably believed that the complainant was consenting). 159 Such an approach, however, as we have stated, would still require an assessment to be made of the 'materiality' of the effect of the intoxication on the complainant's decision-making processes and so, in practical terms, would raise the same issue for the jury as the way in which the State case was presented in the present case. Ground 3 – disposition 160 In assessing the adequacy of the learned trial judge's directions in relation to the issue of 'consent' obtained by deceit or fraudulent means, it is important to recall that the duty of the trial judge is to instruct the jury on so much of the law as was necessary for them to decide the real issues of the case. The discharge of that duty will depend upon all of the circumstances of the case.95 161 In relation to what Mr Mehrabi described as 'Pathway 3', as we have said at [102] above, the possibility that Ms Campbell or Ms Turner might have 'consented' to the relevant sexual acts by Mr Mehrabi because of the disinhibiting effects of their involuntary intoxication did not derive from any direct evidence to that effect. Neither Ms Campbell nor Ms Turner gave evidence to that effect: indeed, insofar as they had a memory of the events at all, their evidence was to the contrary. 162 Accordingly, the only evidential basis for Pathway 3 was the absence of evidence of consent by Ms Campbell or Ms Turner (and in Ms Campbell's case, the absence of any memory at all), together with the evidence from Professor Drummer to the effect that MDMA can 95 Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar & Kitto JJ); RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron ACJ, Gummow, Kirby & Hayne JJ); Ruthsalz v The State of Western Australia [2018] WASCA 178 [134] - [135] (Buss P, Mazza & Beech JJA). -- 45 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 46 increase sexual desire and can reduce a person's ability to resist sexual advances. 163 In addition, the issue posed by ground 3 in the appeal, presupposes that the jury have already been satisfied that Mr Mehrabi engaged in deceitful or fraudulent conduct in drugging the complainant with MDMA (and indeed, as demonstrated by verdicts of guilty on counts 2 and 17, that he did so with the intention of committing an indictable offence). 164 In those circumstances, the only real issue of 'causation' in this scenario was whether, in fact, Ms Campbell or Ms Turner (as the case may be) was affected by MDMA to such an extent that it materially affected her decision-making ability. If their decision-making ability was so affected, in our view, it followed that any 'consent' obtained in those circumstances was 'obtained by' fraud and not freely and voluntarily given. 165 This is, in effect, precisely how the learned trial judge directed the jury, as reflected in the passages at [126] above. That direction focussed on the decision-making ability of the complainant and the role of the drug that she had unknowingly consumed on any decision that she made. Her Honour made clear, in this scenario, that unless the jury was satisfied the drug played a 'material role' in the complainant's decision-making, they could not be satisfied that the sexual act was non-consensual. In our view, in the circumstances of the present case, no more detailed direction was required. 166 Given that this scenario was raised on the evidence despite the absence of evidence from Ms Campbell or Ms Turner that they had consented to the sex, that issue was likely to be resolved by reference to the evidence as to the symptoms they described and the evidence of Professor Drummer as to the effects of MDMA. It was not, in light of the real issues in the case, going to be resolved by posing a counterfactual to an already hypothetical scenario, as to what they would have done had they not been unknowingly drugged. 167 Given that neither Ms Campbell nor Ms Turner, for example, gave evidence that they had consented to sex with Mr Mehrabi because they felt 'disinhibited' by the unknown effects of MDMA, it would have been meaningless to ask them whether, had they not been disinhibited by the unknown effects of MDMA, they would nevertheless have consented to sex with him. Not surprisingly, they were not asked that -- 46 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 47 question. Nor in the circumstances was it necessary or appropriate to pose that question to the jury for its consideration. 168 The learned trial judge did not err in her instructions to the jury as to the issue of consent, in relation to any of the 'pathways' that the jury might have followed in arriving at their verdicts. 169 While we would grant leave to appeal on ground 3, the ground must be rejected. 170 We turn, finally to ground 2. Ground 2 – honest and reasonable mistake 171 Ground 2 is also concerned with 'Pathway 3' and contends that the learned trial judge erred in failing to direct the jury that the State was required to exclude the defence of honest and reasonable, but mistaken, belief (s 24 of the Criminal Code) in circumstances in which it had found that any apparent 'consent' was vitiated by deceit or fraudulent means. 172 The relevant directions of the learned trial judge in relation to this ground of appeal are reproduced at [94] above and the related directions specific to Ms Campbell and Ms Turner. Mr Mehrabi submitted that, for the most part, these directions were correct. His submissions continued:96 However, they failed to take into account a situation in which the appellant had given MDMA to a complainant without her knowledge, but believed that her consent to sexual acts with him was not caused (in the relevant sense) by her taking those drugs. In that scenario, a mistaken belief would be a mistake of fact and not law, and the jury would be required to consider whether the prosecution had negated s 24. 173 As can be seen, the alleged 'mistaken' belief which ground 2 posits ought to have been left to the jury is a belief on the part of Mr Mehrabi that, notwithstanding that he had given the complainant MDMA without her knowledge, the complainant's apparent 'consent' to the sexual acts was not 'caused' by her taking those drugs. So understood, ground 2 has a similar focus to ground 3, namely the relationship between Mr Mehrabi's deceitful administration of drugs to the complainant and the absence of 'consent freely and voluntarily given' on the part of the complainant. 96 Appellant's Submissions [52] (WAB 24). -- 47 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 48 174 Mr Mehrabi submitted that it was open to the jury to accept (or at least have a reasonable doubt) that Mr Mehrabi 'gave MDMA to the complainants because he enjoyed the experience of socialising under its influence and not for the purpose of obtaining their consent to sex when they would not otherwise have done so, and thus that he honestly and reasonably believed that the complainants' consent to sexual acts with him was not caused by the MDMA they consumed'.97 Ground 2 – previous cases 175 Whether the defence of honest and reasonable, but mistaken, belief of fact should be left to a jury, as recently confirmed by this Court in Pickett v The State of Western Australia,98 was summarised by McLure P in Higgins v The State of Western Australia:99 The relevant question is whether there is evidence which, taken at its highest in favour of the appellant, could as a matter of law, lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charge: Braysich v The Queen (2011) 243 CLR 434 [17], [36]. As the defence of mistake only arises for consideration if the jury is satisfied beyond reasonable doubt that the complainant did not consent, the evidentiary burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the appellant could honestly and reasonably but erroneously believe that the complainant consented: Narkle v The State of Western Australia [2011] WASCA 160 [3]. In short, there must be evidence from which it was open to the jury to infer that the appellant honestly believed that the relevant complainant had consented to the conduct the subject of the charge and that there were reasonable grounds for his belief. 176 As Mr Mehrabi's submissions acknowledged, however, different views have been expressed as to whether a s 24 defence can operate in circumstance in which 'consent' is obtained by deceit or fraudulent means. 97 Appellant's Submissions [58] (WAB 26). 98 Pickett v The State of Western Australia [2025] WASCA 109 [52] (Thomson P, Mazza & Hall JJA). 99 Higgins v The State of Western Australia [2016] WASCA 142; (2016) 263 A Crim R 474 (Higgins v The State of Western Australia) [24] - [26] (McLure P). -- 48 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 49 177 In Higgins v The State of Western Australia, McLure P expressed the view that s 24 could not operate in the case of 'consent' obtained by deceit or fraudulent means:100 Ordinarily, the evidentiary foundation for the subjective aspect of mistake (honest belief) is the evidence of the accused. That must be the case in circumstances where the complainant gives unequivocal evidence of the absence of consent. Moreover, if the sole basis of conviction is that an offender obtained the complainant's consent by deceit or fraudulent means (as to which, see Hunter v The State of Western Australia [2014] WASCA 184 [37] - [38]), there would be no evidentiary basis for the defence of mistake. 178 Mazza JA's reasons in Higgins v The State of Western Australia were to similar effect:101 Of course, a defence under s 24 of the Code could not arise if the jury was satisfied beyond reasonable doubt that S's consent had been obtained by fraud. This is because a finding of fraud would contradict any notion that the belief of consent was honest. 179 Corboy J did not express a concluded view on this issue in Higgins v The State of Western Australia, as the appeal in that case was upheld on other grounds, although his Honour observed that '[w]hether, and to what extent, a direction on s 24 of the Criminal Code will be required in the retrial will depend on the evidence and how the State chooses to formulate its case'.102 180 The application of s 24 to a case of 'consent' obtained by fraud was also addressed, again by way of obiter, in HES v The State of Western Australia. In that case, Buss P expressed the view that s 24 may apply where the complainant's consent was vitiated by deceit or fraud and:103 there is some evidence, fit for the jury's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the accused's deceit or fraudulent means did not induce the complainant to expressly or impliedly consent to the sexual penetration in that the relevant deceit or fraudulent means was not the inducing cause of the complainant giving their express or implied consent to the penetration. 181 While Buss P, in his reasons in HES v The State of Western Australia referred to Higgins v The State of Western Australia, his 100 Higgins v The State of Western Australia [28] (McLure P). 101 Higgins v The State of Western Australia [98] (Mazza JA). 102 Higgins v The State of Western Australia [165] (Corboy J). 103 HES v The State of Western Australia [128] (Buss P). -- 49 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 50 Honour did not address the views expressed in that case by McLure P or Mazza JA set out at [177] and [178] above. 182 While Mitchell JA in HES v The State of Western Australia did not specifically address this issue, in his reasons in relation to ground 1 (with which Mazza JA expressly agreed), his Honour at least implicitly accepted that, in a case of deceit based on a representation, s 24 could apply where unbeknown to the accused the complainant had relied upon a representation that was not made for the purpose of inducing anyone to consent to sex.104 Ground 2 – disposition 183 For the reasons that follow, ground 2 must be rejected. 184 While, in most cases it is likely to be the case that the very use of 'deceit or fraudulent means' will preclude the possibility of an honest and reasonable belief as to the complainant's consent, given the different views expressed in HES v The State of Western Australia and Higgins v The State of Western Australia, we would prefer not to express a concluded view as to whether s 24 of the Criminal Code could ever apply in a case in which the apparent 'consent' of a complainant was obtained by deceit or fraudulent means. That issue should await a case in which it is necessary to decide. 185 It is sufficient that we have concluded that s 24 could have had no such application in the present case. 186 In our view, if the jury was satisfied that Mr Mehrabi had obtained the apparent 'consent' of Ms Campbell or Ms Turner by deceitfully drugging them with MDMA, there was no basis to leave to the jury the defence of honest and reasonable, but mistaken, belief as to their consent. 187 The terms in which that conclusion was explained by the learned trial judge was that Mr Mehrabi's mistaken belief in such a case would be a mistake of law, rather than a mistake of fact, because it would be 'a mistaken belief as to the law as to what constitutes free and voluntary consent'. That is certainly one, but in our view not the only, way of explaining the result in relation to this issue. 188 In that respect, part of the difficulty with this issue is what we identified at [85] above as the fact that the definition of consent in 104 HES v The State of Western Australia [237] (Mitchell JA). -- 50 of 58 -- [2026] WASCA 111 QUINLAN CJ & FIANNACA J Page 51 s 319(2)(a) of the Criminal Code itself also uses the word 'consent' in a way that is intended to convey a different meaning to the defined term. That is, the definition uses 'consent' in two distinctly different ways. As we have said, the ultimate question for the jury as to that element of the offence is whether the State has proven the absence of 'consent freely and voluntarily given'. While the definition of consent therefore has a legal meaning, whether there was an absence of such consent (so defined) is a question of fact for the jury. 189 In the same way, where s 24 is relied upon, the accused's positive belief must be a belief as to the existence of the fact of consent (so defined). It cannot be a belief in a different state of mind that the accused considers to be 'consent' but which is not the state of mind with which the law is concerned (namely 'consent freely and voluntarily given', including one not having been obtained by deceit or fraudulent means). In one sense, that can be described, as the learned trial judge did, as a mistake of law. In another sense, it might also be described as a belief in an irrelevant fact: namely a belief in a state of things (a different state of mind) that has no relevance to the accused's criminal responsibility. 190 Mr Mehrabi's submissions on the appeal sought to confine the issue under s 24 to an honest and reasonable, but mistaken, belief as to the causal connection between his deceitful drugging of Ms Campbell and Ms Turner and any decision by them to engage in sexual activity with him. That submission, of course, proceeds upon the basis that the jury was satisfied that Mr Mehrabi engaged in deceitful or fraudulent conduct in drugging Ms Campbell and Ms Turner with MDMA and that the drugs had vitiated any 'consent' that they might have given. 191 So understood, in our view, there was simply no evidentiary basis that could lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that his own deceitful administration of drugs did not have a material effect on any decision by either of those complainants to engage in sexual activity. 192 In the first place, of course, Mr Mehrabi positively denied that he had given either Ms Campbell or Ms Turner any MDMA without their knowledge. Indeed, he did not give evidence that he had a positive belief as to the voluntary use of MDMA by either woman on the occasions in question. In the case of Ms Turner, for example, he positively denied that that could have been the case and said that he was not in possession of any drugs on 11 March 2022. Any evidential basis -- 51 of 58 -- [2026] WASCA 111 QUINLAN CJ, FIANNACA J & THOMSON P Page 52 for a s 24 defence would therefore have to be an inference drawn that was positively contrary to Mr Mehrabi's own evidence. 193 In addition, in circumstances in which Mr Mehrabi had in fact deceitfully given Ms Campbell and Ms Turner MDMA without their knowledge, there could be no basis on the evidence, to conclude (as a reasonable hypothesis) that a belief on his part that the drug did not materially affect their decision whether to engage in sex, could be either honest or reasonable. 194 First, such a belief could not be an honest one, in the sense of being a belief reached in good faith. Given that Mr Mehrabi knew about the effects of MDMA (see [68] above), he could not honestly form the belief that the MDMA that he had deceitfully given Ms Campbell and Ms Turner would have had no effect on any decision they might make as to whether to engage in sexual activity. This was the case even leaving aside the jury's conclusion on counts 2 and 17, that Mr Mehrabi gave them the MDMA with the intention of committing an indictable offence. 195 Nor, in light of his own knowledge and the evidence of Professor Drummer as to the effects of MDMA, could a belief that drugging the complainants would not have materially affected any decision they might make as to whether to engage in sexual activity be reasonable. No reasonable person, knowing the effects of MDMA, would form such a belief. 196 Ground 2 is without merit. We would refuse leave to appeal. Conclusion 197 For the foregoing reasons, while we would grant leave to appeal on grounds 1 and 3, we would dismiss the appeal. THOMSON P: 198 I have had the advantage of reading the detailed judgment of Quinlan CJ and Fiannaca J, which sets out all of the necessary background, and extensively reviews the applicable law. While I agree that the appeal should be dismissed, unlike the other members of the Court who would grant leave to appeal on grounds 1 and 3, I do not think that leave to appeal should be granted on any of the grounds. I consider that each of the grounds may be rejected for the brief reasons set out below. -- 52 of 58 -- [2026] WASCA 111 THOMSON P Page 53 Relevant background 199 Among various counts, the appellant was charged with 12 offences of sexual penetration without consent, contrary to s 325 of the Criminal Code, and two offences of indecent assault, contrary to s 323 of the Criminal Code. These particular offences related to five young women. They involved circumstances of alleged sexual penetration or indecent assault where the appellant had administered a stupefying drug (MDMA) to each victim. 200 The appellant maintained that each victim had consented to the sexual activity, or at least he claimed that he had an honest and reasonable belief that this was so. 201 This defence created an issue about whether each victim had properly consented to the sexual activity, or whether there was an absence of consent or a vitiated consent. When the matter was left to the jury, the jury was instructed that there were three categories of situation which might need to be considered, although not each situation would be relevant to every victim or every instance of alleged offending. The three categories of situation were described by the appellant in the appeal as 'pathways'. 202 The three categories of situation or 'pathways' were the following: (a) the complainant had consciously not consented to the sexual act grounding the offence in question; (b) the complainant had been too intoxicated by drugs and/or alcohol, whether voluntarily consumed or not, to give free and voluntary consent to the sexual act; (c) the appellant had given the complainant MDMA without her knowledge or consent, and although she had in fact consented to the sexual act, her consent was obtained by deceit or fraudulent means, and was therefore not a legally valid consent. 203 The jury was instructed that if it was satisfied of guilt beyond reasonable doubt in respect of one of the offences, this may be relevant to concluding that the appellant was guilty of other offences. The direction was given in the following terms:105 105 Ts 2320. -- 53 of 58 -- [2026] WASCA 111 THOMSON P Page 54 But if you do come to be satisfied beyond a reasonable doubt that the accused is guilty of one of the sexual offences charged, whether that is an indecent assault or a sexual penetration without consent, then you would be entitled to find that he had a tendency to engage in sexual acts with a woman without her consent, and not having an honest and reasonable belief that she was consenting, and you would be entitled to reason that he was objectively more likely to have acted in that same way in relation to a different complainant. Appeal ground 1 204 The correctness of the 'tendency' direction set out in the last paragraph is the subject of appeal ground 1. However, the difficulty with the direction now identified by the appellant was not something raised with the trial judge when the trial judge made the direction set out above. 205 The essence of this appeal ground is that if the appellant was convicted of an offence upon the basis of the absence of proper consent by reason of the third category or 'Pathway 3', it would be impermissible to reason that this demonstrated a tendency to commit any other offences upon the basis of the first category or 'Pathway 1'. 206 The appellant said that it was impermissible to reason in this manner because a person who might be prepared to covertly administer MDMA to a victim, and then proceed with sexual activity with that victim upon the basis of the victim's vitiated consent given under the influence of MDMA, was in a different category from a person who was prepared to engage in sexual activity without any consent. 207 While it is true that there may be a difference between proceeding with sexual activity upon the basis of vitiated consent, and in circumstances where there is no consent forthcoming, where the vitiated consent is a result of the covert administration of a drug which leads to the consent becoming vitiated, it seems to me that there is no difference in quality between the actions of the person procuring the sexual activity. 208 In both situations, the person is prepared to proceed with sexual activity upon the basis of overcoming the will of the victim. The person perpetrating the sexual activity is prepared to contravene the personal autonomy of the victim, whether that contravention is a result of forcing himself upon the victim or covertly causing the victim to consent to the sexual activity. -- 54 of 58 -- [2026] WASCA 111 THOMSON P Page 55 209 Therefore, I consider that there was no difficulty about a direction to the jury that if it was satisfied beyond a reasonable doubt that an offence had been committed, on the basis that there was an absence of consent due to the case being within category 3 or by reason of 'Pathway 3', this could be used as evidence of a tendency on the part of the appellant to proceed with sexual activity with a complainant without the complainant providing fully informed and voluntary consent, even where the absence of consent in this next case is because it is within category 1 or category 2, rather than category 3. 210 For this reason, leave to appeal on ground 1 should not be granted, and this appeal ground should be rejected. Appeal ground 2 211 The second appeal ground concerns whether the trial judge ought to have left a defence of honest and reasonable, but mistaken, belief as to consent to the jury (s 24 of the Criminal Code) by directing that the State was required to exclude such a defence. The appeal ground claims that the trial judge ought to have done so. 212 The appellant contends that a defence of honest and reasonable, but mistaken, belief should have been left to the jury to deal with a situation in which the appellant had given MDMA to a complainant without her knowledge, but he believed that the complainant's consent to sexual acts with him was not caused (in the relevant sense) by her taking those drugs. The appellant claims that in this type of scenario, a mistaken belief would be a mistake of fact and not law, and the jury would be required to consider whether the prosecution had negated s 24.106 213 The appellant accepts that there would have to be an evidentiary basis for the mistake, before a direction of the type referred to in the last paragraph would have to be given.107 214 At the oral hearing of the appeal, the appellant accepted that it was a matter of implication or inference to establish an evidentiary basis for a belief on his part that any complainant's consent to sexual acts with him was not caused by her taking MDMA108. However, there is a significant difficulty about this. 106 Appellant's written submissions [52]. 107 Appellant's written submissions [56] - [57]. 108 Appeal ts 61 - 62. -- 55 of 58 -- [2026] WASCA 111 THOMSON P Page 56 215 In circumstances where the appellant has administered MDMA, it is difficult to comprehend how he could have any reasonable basis for concluding that this drug had not materially affected the complainant's ability to consent to sexual acts. It may or may not have done so, but it is inconceivable that the appellant could reasonably have believed that a drug such as MDMA would have had no effect upon the ability of an appellant to consent to sexual activity.109 216 Moreover, there is also a difficulty in concluding that any belief of the appellant was an honest one, in the sense of being a belief reached in good faith. If the appellant administers a drug covertly to a complainant, I cannot see how it would be a matter of good faith to reach the view that the MDMA had no effect upon the complainant's desire to engage in sexual activity. The expert evidence was that one of the known consequences of MDMA is to increase the desire to engage in sexual acts.110 217 For these reasons, I would not grant leave to appeal on appeal ground 2, and I would dismiss this ground as well. Appeal ground 3 218 This last appeal ground concerns whether the prosecution had to prove that, absent the appellant's covert administration of MDMA, the complainant would not have consented to the sexual act which was the subject of any relevant count, in order to establish that the administration of MDMA was the factual cause of the complainant consenting to the sexual activity. 219 The appellant relies upon the discussion of Buss P in HES v The State of Western Australia111 to support its submission that in order to establish causation, the State must prove the counterfactual, i.e. the State must prove that, absent the accused's deceit or fraudulent means, the complainant would not have expressly or impliedly consented to the sexual penetration. 220 It is correct that this is stated by Buss P in HES. However, that was an entirely different case, which involved misrepresentations about the spiritual and healing effect of sexual activity for the purposes of aboriginal medical treatment. It did not involve any form of drug affecting the awareness or decision-making ability of a complainant. 109 Compare Trial Ts 1795 - 1796. 110 Judgment of Quinlan CJ and Fiannaca J [70]. 111 HES v The State of Western Australia [2022] WASCA 151; (2022) 59 WAR 391 [126]. -- 56 of 58 -- [2026] WASCA 111 THOMSON P Page 57 221 Moreover, the analysis of Buss P was evidently about cases involving misrepresentations, because the whole of his discussion concerned whether the statutory definition of 'consent' contained in the Criminal Code was an extension upon the common law as defined in Papadimitropoulos v The Queen.112 That case was concerned about misrepresentations leading to rape. 222 It is significant that, in expressing his final conclusions about the case in HES, Buss P confined his conclusions to situations of representations.113 It is also significant that this was the approach of Mitchell JA,114 with whom Mazza JA agreed.115 223 In my view, the statements about causation by Buss P do not apply in a case where there is a question about the decision-making capacity of the complainant being impaired by an action of the accused. In that situation, the relevant test of causation is simply whether the accused materially contributed to the impairment of the decision-making capacity of the complainant. That is consistent with the 'common sense' approach to causation adopted in many areas of the law. 224 This approach also removes the need to postulate whether a complainant would have, hypothetically, agreed to sexual activity had the complainant not had their decision-making capacity impaired by the actions of the accused. In many cases the question of whether the complainant would have consented may not be capable of being ascertained, or even known by the complainant. It may have depended upon how events transpired in the lead up to the critical moment. 225 For all of these reasons, I would not grant leave to appeal on appeal ground 3, and I would dismiss this ground. The trial judge was correct to direct that if the drug that a victim has unknowingly consumed 'plays a material role in her decision to consent, then that consent is not freely and voluntarily given because consent obtained by deceit or fraudulent means is not consent'.116 Conclusion 226 As I have indicated, the appellant should not be granted leave to appeal on any ground, and the appeal should be dismissed. 112 Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249. 113 HES [129], [131]. 114 HES [243]. 115 HES [135], [137]. 116 Trial Ts 2266. -- 57 of 58 -- [2026] WASCA 111 THOMSON P Page 58 I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia. MPS Associate to the Honourable Chief Justice Quinlan 11 AUGUST 2026 -- 58 of 58 --