7.3.1.3 - Charge: Belief in consent (Pre-1/07/15)

Click here to obtain a Word version of this document

How to use this charge

This charge contains two alternative ways to explain the effect of Crimes Act 1958 s37AA. Judges should choose one form of explanation, or may combine several options depending on what is most likely to clearly and correctly explain the relevant law to the jury.

Alternative 1

In considering whether the prosecution has proved that NOA was aware that NOC was not consenting or might not have been consenting to the penetration, you must consider any evidence that the accused believed that the complainant was consenting and whether that raises a doubt about whether s/he was aware that NOC was not or might not be consenting. [Briefly summarise relevant prosecution and defence evidence and arguments].[1]

In deciding whether NOA believed that the complainant was consenting, you must consider whether it would have been reasonable for him/her to hold that belief in all the circumstances. This is not because the law requires that the belief be reasonable. It does not. A person may genuinely hold a belief, despite it being unreasonable and you could not find this element proven merely because you find that NOA’s alleged belief in consent was unreasonable. The reasonableness of the accused’s alleged belief is no more than a guide to help you decide whether or not the accused held that belief.

In considering the reasonableness of the NOA’s belief, the following [two / three] factors may be relevant.

[Where a circumstance listed in section 36 or 37AAA(d) or (e) is relevant, add the following shaded section]

First, if you are satisfied that NOC was not consenting because you are satisfied that [describe relevant section 36 or 37AAA(d) or (e) circumstance(s)], then you must consider whether NOA was aware that [describe relevant section 36 or 37AAA(d) or (e) circumstance(s)] as his/her knowledge of that matter is also relevant to whether s/he believed that NOC was consenting. However, knowledge by NOA that [describe relevant section 36 or 37AAA(d) or (e) circumstance] does not determine whether s/he was aware that NOC was not or might not be consenting.[2]

[First / Second], you must consider whether the accused took any steps to find out whether the complainant was consenting and if so, the nature of those steps. In this case [identify any evidence and/or competing arguments about the steps taken by the accused).

[Second / Third], you must consider any other relevant factors. That includes [identify any evidence and/or competing arguments about the accused’s state of mind. In particular:

It is not for the accused to prove that s/he believed that the complainant was consenting. It is for the prosecution to disprove the existence of a belief in consent which would have prevented NOA from having an awareness that NOC was not consenting or might not have been consenting. [State whether the Crown disputes that NOA had such a belief at all] The prosecution must satisfy you that NOA was aware that NOC was not or might not be consenting, even if he believed NOC was consenting.

There is a difference between a belief in consent which NOA relies upon and an awareness that NOC was not or might not be consenting, which is what this element is about. That is because there are different strengths of belief.

In order to prove this element of awareness, the prosecution must prove to you that NOA did not have such a strong belief that NOC was consenting that s/he did not think of the possibility that she might not be consenting. In determining the strength of NOA’s belief in consent, you should consider the matters I just mentioned that are relevant to whether the belief was held. This includes any evidence of the belief, [whether the accused was aware that [describe relevant section 36 or 37AAA(d) or (e) circumstances], whether the accused took steps to find out whether the complainant was consenting and any other relevant factors.

It is for the prosecution to show NOA did not have a belief that creates a reasonable doubt that s/he was actually aware NOC was not, or might not have been, consenting.

The prosecution will therefore prove this element if you are satisfied that even though NOA believed NOC was consenting, he was still aware that s/he might not be consenting.

Alternative 2

In this case, [evidence has been led / the defence argue] that at the time of the sexual penetration NOA believed that NOC was consenting to the sexual act. [Briefly summarise relevant prosecution and defence evidence and arguments].

If the accused believed the complainant was consenting, that may raise a reasonable doubt about this element.

There are two matters you must consider regarding this [evidence / argument] about NOA’s belief in consent.

First, you must look at any evidence of that belief. [Identify relevant evidence].

Second, you must consider whether that belief was reasonable in the circumstances. This is because the reasonableness of a belief is a guide to whether it is held. There are [two/three] factors for you to look at when judging whether a belief in consent was reasonable.

[Where a circumstance listed in section 36 or 37AAA(d) or (e) is relevant, add the following shaded section]

One, if you find that [describe relevant section 36 or 37AAA(d) or (e) circumstance(s)], you must consider whether the accused was aware that [describe relevant section 36 or 37AAA(d) or (e) circumstance(s)]. However, even if you find that NOA was aware that [describe relevant section 36 or 37AAA(d) or (e) circumstance(s)], that does not necessarily prove that NOA was aware that NOC was not or might not be consenting. It just affects whether a belief in consent was reasonable.

[One / Two], whether the accused took any steps to find out whether the complainant was consenting or might not be consenting and if so, the nature of those steps. In this case [identify any evidence and/or competing arguments about the steps taken by the accused].

[Second / Third], any other relevant factors. That includes [identify any evidence and/or competing arguments about the accused’s state of mind. In particular:

Remember though that these [two/three] factors are only relevant because the reasonableness of a belief is a guide to whether NOA in fact held that belief. However, the law does not require that the accused’s beliefs are reasonable. An unreasonable belief that is genuinely held can raise a reasonable doubt about this element.

So far, I’ve been speaking about a belief in consent. But remember that the element is that the prosecution must prove that at the time of the sexual penetration the accused:

A belief in consent and an awareness that the complainant might not be consenting are different ideas.[4] It is for the prosecution to show that NOA did not have a belief in consent of a kind that leaves you with a reasonable doubt that s/he was actually aware that NOC was not or might not be consenting. Whether a belief in consent raises a reasonable doubt about this element depends on your view of the nature and extent of NOA’s alleged belief in consent.

[1] The judge should generally require counsel to identify any evidence relevant to this issue before commencing the charge to the jury.

[2] The judge may consider adding an example to further explain this point.

[3] For offences alleged to have been committed before 1/1/08, the second bullet point must be omitted.

[4] Judge may wish to insert a suitable example at this point to explain the scope for a person to believe one thing and be aware that they might be mistaken.

Last updated: 10 October 2012

See Also

7.3.1 - Consent and Consent-related Fault Element

7.3.1.1 - Consent and reasonable belief in consent (From 1/7/15)

7.3.1.2 - Consent and Awareness of Non-Consent (Pre-1/07/15)