Victorian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

JURY DIRECTIONS ACT 2015 - SECT 47

Direction on reasonable belief in consent

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

    (2)     In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify one or more of the directions set out in subsection (3).

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

S. 47(3)(a) amended by No. 47/2016 s. 28(1).

        (a)     direct the jury that if the jury concludes that the accused knew or believed that a circumstance referred to in section 36 of the Crimes Act 1958 existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act; or

        (b)     direct the jury that in determining whether the accused who was intoxicated had a reasonable belief at any time—

              (i)     if the intoxication was self-induced, regard must be had to the standard
of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as the accused at the relevant time; and

S. 47(3)(b)(ii) amended by No. 47/2016 s. 28(2).

              (ii)     if the intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the accused and who is in the same circumstances as the accused at the relevant time; or

S. 47(3)(c) inserted by No. 47/2016 s. 28(3).

        (c)     direct the jury that—

              (i)     a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and

              (ii)     a belief in consent based on a combination of matters including such a general assumption is not a reasonable belief to the extent that it is based on such an assumption; or

S. 47(3)(d) inserted by No. 47/2016 s. 28(3).

        (d)     direct the jury that in determining whether the accused had a reasonable belief in consent, the jury must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent; or

S. 47(3)(e) inserted by No. 47/2016 s. 28(3).

        (e)     direct the jury that in determining whether the accused had a reasonable belief in consent, the jury may take into account any personal attribute, characteristic or circumstance of the accused.

S. 47(4) inserted by No. 47/2016 s. 28(4).

    (4)     A good reason for not giving the direction set out in subsection (3)(e) is that the personal attribute, characteristic or circumstance—

        (a)     did not affect, or is not likely to have affected, the accused's perception or understanding of the objective circumstances; or

        (b)     was something that the accused was able to control; or

        (c)     was a subjective value, wish or bias held by the accused, whether or not that value, wish or bias was informed by any particular culture, religion or other influence.

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.

Division 2—Delay and credibility

S. 48 amended by No. 6/2017 s. 16.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback