Victorian Numbered Acts Victorian Numbered Acts(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
Section 34C 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
(c) warn the jury that evidence of the following alone is not enough to regard a person as having consented to an act—
(i) evidence that the person did not protest or physically resist; or
(ii) evidence that the person did not sustain physical injury; or
(iii) evidence that on any particular occasion the person consented to another act that is sexual in nature (whether or not of the same type) with the accused or with another person.
(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
Section 34C of the Crimes Act 1958 sets out these circumstances.
(b) direct the jury that if the jury is satisfied beyond reasonable doubt that a circumstance referred to in section 34C 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.