CRIMES AMENDMENT (SEXUAL OFFENCES AND OTHER MATTERS) ACT 2014 (NO. 74 OF 2014) - SECT 20 Part 14 substituted and new Part 15 inserted

CRIMES AMENDMENT (SEXUAL OFFENCES AND OTHER MATTERS) ACT 2014 (NO. 74 OF 2014) - SECT 20

See:

Act No.

12/2013.

LawToday:

www.

legislation.

vic.gov.au

For Part 14 of the Jury Directions Act 2013 substitute —

" PART 14—RAPE AND SEXUAL ASSAULT

        60     Application of Part

This Part applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against any provision in Subdivision (8A) to (8D) of Division 1 of Part I of the Crimes Act 1958 .

        61     Direction on consent

    (1)     The prosecution or defence counsel may request under section 11 that the trial judge direct the jury on—

        (a)     consent; or

        (b)     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—

        (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); or

        (c)     in the case of a request for a direction in relation to reasonable belief—one or more of the directions set out in subsection (5).

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)     inform the jury that the fact that a person did not say or do anything to indicate consent to an act at the time at which the act took place is enough to show that the act took place without the person's consent; or

        (d)     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.

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

        (a)     direct the jury that if the jury concludes that the accused knew or believed that a circumstance referred to in section 34C 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

              (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.

Note

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 15 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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PART 15—TRANSITIONAL PROVISIONS

        62     Transitional provisions

The Schedule continues to have effect.

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