Leak (D) came home with Cogan (D1). D told his wife that D1 wanted to have sex with her and that D was going to see that it happened. D took his wife upstairs, undressed her and put her on the bed. D1 then came into the room. D asked his wife if she wanted to have sex with D1 and she refused both times. D then had sex with his wife in front of D1 and then asked D1 if he wanted to, and D1 then proceeded to have sex with D's wife. D and D1 were arrested about 45 minutes after they left the house. D basically confessed that he intended his wife be raped by D1. D1 gave evidence that he thought she had consented. The trial court instructed the jury that D was guilty of rape notwithstanding that he believed she had consented if his belief was unreasonable. D and D1 were convicted, but D1's conviction was quashed; even an unreasonable belief that the victim had consented precluded a conviction for rape. D appealed contending that he could not be found guilty of aiding and abetting D1 if D1 was not guilty of the crime.

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