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JURY DIRECTIONS ACT 2015 - SECT 46

Direction on consent

    (1)     The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on consent.

    (2)     In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—

        (a)     in the case of a request for a direction on the meaning of consent—one or more of the directions set out in subsection (3); or

        (b)     in the case of a request for a direction on the circumstances in which a person is taken not to have consented to an act—one or more of the directions set out in subsection (4).

Note to s. 46(2) amended by Nos 47/2016 s. 27(1), 5/2018 s. 19. [1]

Note

Section 36 of the Crimes Act 1958 provides that consent means free agreement. That section also sets out circumstances in which a person has not consented to an act.

    (3)     For the purposes of subsection (2)(a), the prosecution or defence counsel may request that the trial judge—

        (a)     inform the jury that a person can consent to an act only if the person is capable of consenting and free to choose whether or not to engage in or allow the act; or

        (b)     inform the jury that where a person has given consent to an act, the person may withdraw that consent either before the act takes place or at any time while the act is taking place; or

S. 46(3)(c) substituted by No. 47/2016 s. 27(2).

        (c)     inform the jury that experience shows that—

              (i)     there are many different circumstances in which people do not consent to a sexual act; and

              (ii)     people who do not consent to a sexual act may not be physically injured or subjected to violence, or threatened with physical injury or violence; or

S. 46(3)(d) inserted by No. 47/2016 s. 27(2).

        (d)     inform the jury that experience shows that—

              (i)     people may react differently to a sexual act to which they did not consent and that there is no typical, proper or normal response; and

              (ii)     people who do not consent to a sexual act may not protest or physically resist the act; or

Example

The person may freeze and not do or say anything.

S. 46(3)(e) inserted by No. 47/2016 s. 27(2).

        (e)     inform the jury that experience shows that people who do not consent to a sexual act with a particular person on one occasion, may have on one or more other occasions engaged in or been involved in consensual sexual activity—

              (i)     with that person or another person; or

              (ii)     of the same kind or a different kind.

    (4)     For the purposes of subsection (2)(b), the prosecution or defence counsel may request that the trial judge—

        (a)     inform the jury of the relevant circumstances in which the law provides that a person does not consent to an act; or

Note to s. 46(4)(a) amended by No. 47/2016 s. 27(3).

Note

Section 36 of the Crimes Act 1958 sets out these circumstances.

S. 46(4)(b) amended by No. 47/2016 s. 27(4).

        (b)     direct the jury that if the jury is satisfied beyond reasonable doubt that a circumstance referred to in section 36 of the Crimes Act 1958 existed in relation to a person, the jury must find that the person did not consent to the act.

Note

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so.
Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.



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