Previous Topic

Next Topic

Book Contents

Book Index

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

Click here for a Word version of this document

Note: This topic describes the law relating to consent and reasonable belief in consent for sexual offences committed on or after 1 July 2015. For information on consent and the fault element for offences committed before 1 July 2015, see Consent and awareness of non-consent (Pre-1/07/15)

  1. The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 altered the statutory definition of several sexual offences, including rape and sexual assault to replace the subject fault element of “awareness of non-consent” with a partially objective fault element of “no reasonable belief in consent”.
  2. The purpose of this change was to simplify the law on rape and rape related offences, particularly in relation to an accused’s claimed belief that the complainant was consenting (Criminal Law Review Consultation Paper “Review of Sexual Offences” September 2013, 3-37).
  3. The Amendment Act also made consequential changes to the definitions of consent and sexual penetration.
  4. This topic explains the law relevant to consent and reasonable belief in consent which applies to sexual offences committed on or after 1 July 2015.
  5. The Crimes Act 1958 defines “consent” to mean “free agreement” and describes (non-exclusively) circumstances where a person “does not freely agree to an act” (s 34C between 1 July 2015 and 30 June 2017 and s 36 from 1 July 2017 onwards).
  6. Jury Directions Act 2015 ss 46 and 47 provide for jury directions that must be given in respect of the complainant’s consent and the accused’s awareness of that state of consent in sexual offence cases, where these matters are in issue.
  7. Sections 46 and 47 of the Jury Directions Act 2015 were further amended by the Crimes Amendment (Sexual Offences) Act 2016.

    Operation of Consent Provisions

  8. Crimes Act 1958 s34C provides the meaning of consent for the purposes of Subdivisions (8A) to (8D).
  9. Sections 46 and 47 of the Jury Directions Act 2015 are limited in two ways:
    1. The sections provide for directions that are only to be given where a request is made, or there are otherwise substantial and compelling reasons for giving the directions (Jury Directions Act 2015 ss 14, 16).
    2. Sections 46 and 47 only apply to proceedings for offences against provisions in Subdivision (8A), (8B), (8C) or (8D) of Division 1 of Part 1 of the Crimes Act 1958
  10. The directions in ss 46 and 47 do not apply to non-sexual offences where consent may be an issue, such as common assault and intentionally causing injury.

    Commencement and Transition

  11. Before 1 July 2015, Crimes Act 1958 ss36, 37AA and 37AAA provided for the meaning of consent and jury directions on consent. These sections were replaced by Crimes Act 1958 s34C and Jury Directions Act 2015 ss46 and 47.
  12. Crimes Act 1958 s34C and Jury Directions Act 2015 ss46 and 47 only apply to offences alleged to have been committed on or after 1 July 2015 (Crimes Act 1958 s626; Jury Directions Act 2015 Schedule 1, clause 1(2)).
  13. The amendments to the Jury Directions Act 2015 introduced by the Crimes Amendment (Sexual Offences) Act 2016 commenced on 26 September 2016, and apply to trials commenced on or after that date, for offences committed on or after 1 July 2015.
  14. For offences committed before 1 July 2015, see Consent and awareness of non-consent (Pre-1/7/15).
  15. From 1 July 2017, the definition of consent is now found in Crimes Act 1958 s 36, following the commencement of the Crimes Amendment (Sexual Offences) Act 2016. In addition to the change of section number, the definition of consent includes one additional circumstance in which a person does not consent (see s36(2)(f)). The Amendment Act did not introduce any relevant transitional provisions to the Crimes Act 1958. As a matter of prudence, the Charge Book has adopted the view that s36(2)(f) only applies to offences committed on or after 1 July 2017.

    Sexual Offences Where Consent is Relevant

  16. Consent will generally be relevant to the following offences, as it is an element of each offence that there be an absence of consent:
    1. Rape (s38)
    2. Rape by compelling sexual penetration (s39)
    3. Sexual assault (s40)
    4. Sexual assault by compelling sexual touching (s41)
    5. Assault with intent to commit a sexual offence (s42)
  17. Consent may be relevant to the following offences, as it is an element of the offence that there be an absence of consent in the particular circumstances identified in the offence provision:
    1. Incest (s44 – as relevant to the defence of compulsion)
    2. Sexual Penetration of a Child Under the Age of 16 (s45)
    3. Indecent Act With Child Under the Age of 16 (s47)
    4. Sexual Penetration of a 16 or 17 Year Old Child (s48)
    5. Indecent Act With 16 or 17 Year Old Child (s49)
    6. Indecent Act With 17 Year Old Child (s49 - repealed)
    7. Sexual Penetration of a Person with a Cognitive Impairment (s51(1), s52(1))
    8. Indecent Act with a Person with a Cognitive Impairment (s51(2), s52(2))
  18. Offences contrary to s47A (Persistent abuse of child under the age of 16) and s49A as it stood before 1 July 2017 (Facilitating Sexual Offences Against Children) may also require consent directions if the underlying offence is listed above.
  19. For offences under sections 45, 47, 48, 49, 51 and 52 (as in force before 1 July 2017), consent is not a defence unless the accused establishes an additional exculpatory matter, such as a belief that the child was aged 16 or over, or that the accused was married to the complainant. The relevant exculpatory matters are explained in the Charges and commentary for each offence.
  20. Where consent is a defence, the prosecution must prove that the complainant did not consent (Crimes Act 1958 ss45(4A), 47(3), 48(3), 49(3), 51(6), 52(4)).
  21. It is an unresolved question what, if any, additional fault element arises where consent is a defence (see R v Deblasis & Deblasis (2007) 19 VR 128; R v Mark & Elmazovski [2006] VSCA 251).
  22. In cases where the accused is charged with sexual penetration of a child or indecent act with a child, the judge should require the parties to identify before the trial whether consent will be in issue, or whether it will only be the additional exculpatory matters which are in issue (Criminal Procedure Act 2009 ss182, 183, 199). This will allow the judge to determine what directions are required in relation to consent and, if necessary, will allow the parties to challenge those intended directions on an interlocutory appeal (Criminal Procedure Act 2009 s295).
  23. While the Crimes Act does not expressly refer to a fault element associated with consent for offences before 1 July 2017, the prudent approach, which is taken in this Charge Book, is to require for these offences that the prosecution prove the accused was aware that the complainant was not or might not be consenting. For offences after 1 July 2017, the drafting of the defences for sexual offences against children indicates that belief in consent is not part of the defences.

    Meaning of “Consent”

  24. Between 1 July 2015 and 30 June 2017, “consent” was defined in s34C of the Crimes Act 1958 to mean “free agreement”.
  25. From 1 July 2017, s36 of the Crimes Act 1958 similarly defined consent as “free agreement”.
  26. Section 34C(2) of the Crimes Act 1958 listed the following situations in which a person is regarded as not having given free agreement. This is not an exhaustive list.
    1. The person submits to the act because of force or the fear of force, whether to that person or someone else;
    2. The person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
    3. The person submits to the act because the person is unlawfully detained;
    4. The person is asleep or unconscious;
    5. The person is so affected by alcohol or another drug as to be incapable of consenting to the act;
    6. The person is incapable of understanding the sexual nature of the act;
    7. The person is mistaken about the sexual nature of the act;
    8. The person is mistaken about the identity of any other person involved in the act;
    9. The person mistakenly believes that the act is for medical or hygienic purposes;
    10. If the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes;
    11. The person does not say or do anything to indicate consent to the act;
    12. Having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.
  27. Section 36(2) lists all of these circumstances and included the additional circumstance:
  28. While the statutory definition of consent is not expressly drafted as a “deeming provision”, it is relatively clear that it must be treated this way (see Jury Directions Act 2015 s46 and Wilson v R (2011) 33 VR 340).
  29. In cases where the prosecution seeks to rely on a circumstance which is not listed in ss34C or 36 as establishing an absence of free agreement, the judge will need to modify the directions accordingly.
  30. Section 34C(2)(b) and section 36(2)(b) states that submission because of “the fear of harm of any type, whether to that person or someone else or an animal” is not consent. The section provides no assistance as to the nature of the harm contemplated. It may extend beyond physical or psychological injury, but that has not yet been determined.
  31. Section 34C(2)(e) and section 36(2)(e) requires that a person is “so affected” by drugs or alcohol as to be incapable of free agreement. Mere impairment of judgement or reduction of inhibitions does not negate free agreement (R v Wrigley 9/2/1995 CA Vic). Note that intoxication can also be relevant to the issue of reasonable belief in consent (see below).
  32. Section 34C(2)(f) and section 36(2)(g) states that a person does not consent if they are incapable of understanding the sexual nature of the act. It must be proved that the person was unable to comprehend either that what is proposed is the physical fact of penetration, or that the act of penetration proposed is sexual (as distinct from an act of a totally different kind) (R v Morgan [1970] VR 337; Neal v R (2011) 32 VR 454).
  33. Section 34C(2)(f) and section 36(2)(g) relates to the complainant’s intellectual capacity. But “capacity to understand the sexual nature of the act” is not the only basis upon which a cognitive impairment may be relevant to consent. A person who understands the sexual nature of an act may be nevertheless incapable of freely agreeing to it, if that person is intellectually unable to make a refusal of consent or unable to understand his or her right to refuse consent (R v Mobilio [1991] 1 VR 339; R v Eastwood [1998] VSCA 42).
  34. In deciding whether a complainant who knew the nature and character of an act of sexual intercourse had the capacity to give real consent to it, the jury can have regard to such things as the complainant’s capacity to appreciate:
  35. Section 34C(2)(i) and section 36(2)(j) says that a person does not consent where they have a mistaken belief that the sexual penetration was for either a medical or hygienic purpose. At common law, mistake as to the purpose of penetration did not deprive consent of reality (R v Mobilio [1991] 1 VR 339. Note that the law stated in Mobilio as to capacity to consent is still correct).
  36. Sections 34C(2)(j), (k) and (l) and sections 36(2)(k), (l) and (m) are new provisions which did not exist in the previous statutory definition of consent.
  37. Section 34C(2)(j) and section 36(2)(k) provides that a person does not consent to a sexual act with an animal if the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes.
  38. Section 34C(2)(k) and section 36(2)(l) states that a person does not consent if “the person does not say or do anything to indicate consent to the act”. This codifies what has been termed the ‘communicative model’ of consent, and requires communication of consent. This amends the law as it existed prior to 1 July 2015.
  39. Prior to 1 July 2015, the jury were directed that the fact that the complainant did not say or do anything to indicate consent was “enough to show” that the act took place without consent (Crimes Act 1958 s37AAA(d)). Courts held that this was not a deeming provision, and that the prosecution was still required to prove the absence of consent. This required evidence to allow the jury to find, as a matter of fact, that the complainant did not say or do anything to indicate free agreement. It did not apply where there was an absence of evidence concerning the complainant’s conduct at the time of the alleged sexual act (ISJ v R (2012) 38 VR 23).
  40. The predecessor provision also did not affect the fault element for the offence, as the law did not require a person to satisfy himself or herself that the other person was consenting. Prior to 1 July 2015, the prosecution would fail to prove its case if it failed to establish the fault element due to the accused assuming that the complainant was consenting (Gordon v R [2010] VSCA 207). Due to the significant changes to Victoria’s sexual offence laws on 1 July 2015 and 26 September 2016, Gordon must now be treated with caution.
  41. Section 34C(2)(l) and section 36(2)(m) states that a person does not consent if “having initially given consent to the act, the person later withdraws consent to the act taking place or continuing”. This ensures that consent is an ongoing state of affairs and that a person must cease the relevant act if the other person withdraws consent.
  42. There is nothing in s34C or s36 to deal with a situation where a person is mistaken as to one of the characteristics of the accused, and it is this characteristic which leads to consent. The common law holds that consent in such circumstances does not make the penetration unlawful (Papadimitropoulos v R (1957) 98 CLR 249).
  43. The fact that a person has agreed to pay a specified sum in return for sex and leaves without paying does not mean that consent was vitiated by fraud (R v Linekar [1995] 3 ALL ER 69).

    Directions on consent (Jury Directions Act 2015 s46)

  44. Division 1 of Part 5 of the Jury Directions Act 2015 sets out the process for a party to seek directions on consent or reasonable belief in consent.
  45. The prosecution and defence may request the judge to give one or more of the prescribed directions on the meaning of consent or the circumstances in which a person is taken not to have consented to an act (Jury Directions Act 2015 s46).
  46. The Act provides that, when seeking directions on the meaning of consent, the parties may ask the judge to:

    (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 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

    (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.

    (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 (Jury Directions Act 2015 s46(3)).

  47. In addition, the Act provides that the parties may ask the judge to
    1. Inform the jury of the relevant circumstances in which the law provides that a person does not consent to an act; or
    2. 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 (Jury Directions Act 2015 s46(4)).
  48. As a direction governed by Part 3 of the Jury Directions Act 2015, a judge should only give these directions if requested by a party or if there are substantial and compelling reasons, in the absence of a request, to give the directions (Jury Directions Act 2015 ss12, 14, 15, 16).
  49. A judge must direct on consent with reference to the issues and evidence in the trial. In many trials the issue will not turn on the special cases described in s34C or s36. In those cases the standard charge should be adapted to focus on the true issues in the trial.
  50. Prior to the commencement of the Crimes Amendment (Sexual Offences) Act 2016 s27(2), the equivalent directions to Jury Directions Act 2015 s46(3)(c) – (e) provided for a judge to warn the jury that certain evidence alone was not enough to regard a person as having consented to an act. The directions were modified to reflect the fact that the prosecution must prove that the complainant did not consent, rather than suggest that the jury must decide whether the complainant did consent (Crimes Amendment (Sexual Offences) Bill 2016 Explanatory Memorandum).

    Reasonable belief in consent

  51. The following offences contain a fault element that the accused did not reasonably believe that the complainant was consenting:
  52. This fault element will be satisfied if the prosecution proves one of the following mental states beyond reasonable doubt:
    1. The accused believed that the complainant was not consenting.
    2. The accused did not believe the complainant was consenting. This includes circumstances where the accused gave no thought as to whether the complainant was consenting.
    3. Even if the accused believed the complainant was consenting, his/her belief was not reasonable in the circumstances.

    Reasonable and unreasonable beliefs

    Warning! The reasonable belief in consent provisions have not yet been considered by a Victorian appellate court. The following material must be treated with caution.

  53. The reasonableness of an accused’s alleged belief in consent (including any steps taken to ascertain consent) was previously relevant only in determining whether the accused genuinely held such a belief (see the now repealed s37AA(b)). For sexual offences alleged to have been committed on or after 1 July 2015, reasonableness of belief is part of the fault element.
  54. On 1 July 2017 the general provisions concerning reasonable belief in consent were repealed and replaced. The discussion below will identify the replacement provisions and any changes to the substance of the provisions.
  55. According to Crimes Act 1958 s37G(1) (before 1 July 2017) and s36A(1) (from 1 July 2017 onwards):

    …whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.

  56. This includes any steps the accused took to find out whether the other person was consenting (Crimes Act 1958 s37G(2) (before 1 July 2017), s36A(2) (from 1 July 2017 onwards)).

    Directions on reasonable belief in consent (Jury Directions Act 2015 s47)

  57. The prosecution or defence counsel may request any of the following directions on reasonable belief in consent:

    (a) 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) 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; or

    (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

    (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

    (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 (Jury Directions Act 2015 s47(3).

  58. Prior to the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, statutory directions on belief in consent were not aligned with the fault element which involved awareness that the complainant was not or might not be consenting. Following the amending Act and the Jury Directions Act 2015, the statutory directions now address the fault element that the accused did not reasonably believe that the complainant was consenting.
  59. The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 also sweeps away the previous law which held that reasonableness of belief was only a guide to whether the belief was held (DPP v Morgan [1976] AC 182; R v Ev Costa 2/4/1997 CA Vic; R v Saragozza [1984] VR 187; R v Zilm (2006) 14 VR 11; Worsnop v R (2010) 28 VR 187; R v Getachew (2012) 248 CLR 22). Under the current sexual offence laws, proof that the accused held an unreasonable belief will prove the fault element for rape and sexual assault.

    Directions on awareness of consent-negating circumstance

  60. Prior to the Jury Directions Act 2015, courts held that it was erroneous to tell the jury that an awareness of a consent-negating circumstance meant that the accused was aware that the complainant was not consenting. Proof of the existence of a consent-negating circumstance combined with proof of the accused’s awareness of that circumstance did not remove the Crown’s obligation to prove the fault element (R v Getachew (2012) 248 CLR 22; Wilson v R (2011) 33 VR 340; Neal v R (2011) 32 VR 454).
  61. The exception to this general rule was that knowledge of the circumstances now described in section 34C(2)(a) – (c) and s36(2)(a) – (c) did prove knowledge of lack of consent, because those three provisions involve submission “because of” some other act. In contrast, the other provisions of s34C and s36 do not contain this causal requirement (see GC v R (2013) 39 VR 363).
  62. Under Jury Directions Act 2015 s47(3)(a), the prosecution or defence may seek a direction that knowledge of a consent-negating circumstance “is enough to show that the accused did not reasonably believe that the person was consenting”. The language of “is enough to show” is consistent with the previous Crimes Act 1958 s37AAA(d), which stated that a failure to indicate free agreement was enough to show that the act took place without the complainant’s consent.
  63. The Victorian Court of Appeal held, in relation to s37AAA(d), that it was not a deeming provision and the onus remained on the prosecution to show that the act took place without consent (ISJ v R (2012) 38 VR 23).
  64. It is likely that the same analysis applies to Jury Directions Act 2015 s47(3)(a) – proof that the accused knew that a consent-negating circumstance existed does not remove the onus on the prosecution to show that the accused had no reasonable belief in consent. The jury must still determine whether the prosecution has proved that element beyond reasonable doubt.

    Directions on relevance of intoxication

  65. The following material should be read in conjunction with Statutory Intoxication and associated charges.
  66. In sexual offence cases, intoxication is potentially relevant in four ways:
  67. Section 34C(2)(e) and section 36(2)(e) provides that a person does not consent if he or she is so intoxicated as to be incapable of consenting. However, intoxication of the complainant may, in some cases, also contribute to a mistaken belief in consent, where the accused is not aware that the complainant is so intoxicated as to be incapable of consenting (see R v SAX [2006] QCA 397; R v Soloman [2006] QCA 244).
  68. When directing the jury on the relevance of the accused’s intoxication, it may be important to separate the effects of intoxication on whether the accused held a belief in consent and whether any such belief was reasonable. It is erroneous to conflate these two issues and suggest that self-induced intoxication is not relevant to the mental element of reasonable belief in consent (O’Loughlin v R [2011] QCA 123).
  69. Jury Directions Act 2015 s47(3)(b) provides for a direction that the jury must not have regard to self-induced intoxication for the purpose of determining whether a belief was reasonable and must have regard to the degree of intoxication if it was not self-induced.
  70. This reflects the provisions of Crimes Act 1958 s37H (from 1 July 2015 to 30 June 2017) and s36B (from 1 July 2017 onwards), which provide that in determining whether the accused had a reasonable belief in the complainant’s consent, self-induced intoxication by the accused at the time of the offending must not be taken into account (s37H(1)(a), s36B(1)(a)).
  71. Instead, the reasonableness of the belief must be determined according to the standard of a reasonable person who is not intoxicated, but is otherwise in the same circumstances as the accused at the relevant time (s37H(1)(a), s36B(1)(a)).
  72. However, if the intoxication is not self-induced, the standard to be used is that of a reasonable person intoxicated to the same extent as the accused at the time of the offending, and who is in the same circumstances as the accused at the relevant time (s37H(1)(b), s36B(1)(b)).
  73. Whether the intoxication is self-induced is governed by s37H(2)–(3) (from 1 July 2015 to 30 June 2017) or s36B(2)-(3) (from 1 July 2017 onwards). In summary, intoxication is self-induced unless it came about involuntarily, as a result of fraud, emergency, duress, or force, or through drug use in accordance with prescription or manufacturer directions (other than when the accused had reason to believe the drug would significantly impair judgment or control) or through using a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation. This will be a matter for the jury to determine, if it is in issue.[1]
  74. For more information about directing a jury in cases where the parties dispute whether the intoxication was self-induced, see Charge: Statutory Intoxication (self-induced contested).

    Direction on general assumptions about circumstances of consent

  75. Jury Directions Act 2015 s47(3)(c) provides that a party may request a direction which instructs the jury that a belief in consent based on a general assumption about the circumstances in which a person consents to a sexual act is not a reasonable belief.
  76. The Act also provides that where a belief in consent is based on a combination of matters which includes a general assumption about the circumstances in which a person consents to a sexual act, then the belief is not reasonable to the extent that it is based on such an assumption (Jury Directions Act 2015 s47(3)(c)(ii)).
  77. According to the Explanatory Memorandum to the Crimes Amendment (Sexual Offences) Bill 2016 which introduced this provision:

    These directions are designed to make clear that stereotyping opinions about sexual behaviour are not to be taken into account when assessing the reasonableness of a belief in consent. An example is an assumption by an accused that the complainant was consenting to sex with him because she was dressed provocatively and got drunk with him.

  78. When the prosecution requests this direction, the judge should require the prosecution to specify the relevant general assumptions which it says may arise in this case.
  79. This direction, in conjunction with the directions in s47(3)(d) and (e), appears to bring Victorian law in line with the approach to reasonable beliefs in Western Australia under the Griffith Code. In Aubertin v Western Australia (2006) 33 WAR 87, McLure JA (Roberts-Smith and Buss JJA concurring) held at [46] that:

    Further, a person's values, whether they be informed by cultural, religious or other influences, are not part of a person's characteristics or attributes for the purpose of assessing the reasonableness of an accused's belief. For example, values resulting in extreme views as to the appropriate mode of dress for women, from which inferences about consent are purportedly drawn, cannot positively affect or inform the reasonableness of an accused's belief. Values do not impact on the capacity to perceive or appreciate primary objective facts or the capacity to process that information. In any event, reasonableness must be judged in the light of generally accepted community standards and attitudes.

    Direction about community expectations

  80. Under Jury Directions Act 2015 s47(3)(d), the jury may be directed 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.
  81. This imports the approach of using community standards and attitudes as the yardstick for assessing reasonableness (see Aubertin v The State of Western Australia (2006) 33 WAR 87; Crimes Amendment (Sexual Offences and Other Matters) Bill 2014, Explanatory Memorandum).
  82. As also reflected in the Crimes Amendment (Sexual Offences) Bill 2016 Explanatory Memorandum, this provision clarifies that in assessing whether the accused had no reasonable belief in consent, the jury need not consider whether the accused considered his or her belief to be reasonable. Direction about the relevance of the accused’s attributes, characteristics and circumstances
  83. Jury Directions Act 2015 s47(3)(e) provides that a party may seek a direction telling the jury that the accused’s personal attributes, characteristics or circumstances are relevant to determining whether the accused had a reasonable belief in consent.
  84. Section 47(3)(e) must be read in conjunction with s47(4), which was introduced at the same time. Section 47(4) provides that a good reason for not giving this direction 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 (Jury Directions Act 2015 s47(4)).

  85. Under Jury Directions Act 2015 s14, a judge must give a requested direction unless there are good reasons for not giving the direction. Section 47(4) is a statutory statement of certain circumstances in which a judge may find good reasons for not giving the requested direction.
  86. In Aubertin v Western Australia (2006) 33 WAR 87 McLure JA (Roberts-Smith and Buss JJA concurring) at [43] stated (emphasis added):

    For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself (See also Pallett v Paul [2007] WASC 290; Bailey v Doncon [2007] WASC 252).

  87. The Act appears designed to adopt this same division, recognising that personal circumstances, attributes and characteristics are relevant to reasonableness of belief, but only to the extent that they may affect the accused’s perceptions of the objective circumstances.
  88. The following table is based on an analysis of decisions from other jurisdictions which allow personal circumstances to influence whether a belief is reasonable. It must be used with caution, as there is no guidance yet on exactly how section 47(3)(e) and 47(4) operate. See R v Mrzljak [2005] 1 Qd R 308; Aubertin v Western Australia (2006) 33 WAR 87; R v Julian (1998) 100 A Crim R 430; R v Conlon (1993) 69 A Crim R 92; Rope v R [2010] QCA 194; R v Dunrobin [2008] QCA 116.

    Relevant to reasonableness

    Irrelevant to reasonableness

    Age of accused

    Accused's values and beliefs, whether informed by cultural, religious or other influences

    Maturity of accused

    Self-induced intoxication of the accused

    Language difficulties between the accused and complainant

     

    Physical disabilities of the accused

     

    Mental disabilities of the accused, including intellectual impairment

     

  89. A useful example of how the accused’s personal characteristics may affect his appreciation or perception is R v Dunrobin [2008] QCA 116. In this case, the accused suffered chronic paranoid schizophrenia. Evidence was led that the accused had poor complex reasoning, had difficulty understanding ambiguous situations and was prone to misinterpret the actions of others. The appellate court held that the trial judge had failed to direct the jury on how these characteristics could give rise to an honest but mistaken belief in consent, where the complainant ceased protesting against his attempts to sexually penetrate her.
  90. In cases where both the accused and the complainant have a cognitive impairment, it may be necessary for the judge to link the accused’s cognitive impairment to two discrete issues: Was the accused aware of whether the complainant had a capacity to consent; and did the accused hold a reasonable belief that the complainant was consenting? As noted below in relation to intoxication, it is an error to conflate these two questions (see R v Mrzljak [2005] 1 Qd R 308).
  91. Queensland and Western Australian courts have also indicated that gender and ethnicity are relevant to reasonableness. However, there is no guidance on how precisely those matters “are capable of affecting [the accused’s] appreciation or perception of the circumstances in which he or she found himself or herself” (compare Aubertin v Western Australia (2006) 33 WAR 87; Commissioner of Police v Stehbens [2013] QCA 81, [16]).

    Relating the law to the facts in issue

  92. Jury Directions Act 2015 ss65 and 66 require the judge to relate the directions on consent and reasonable belief in consent to the facts in issue, and to the elements of the offence being tried in respect of which the direction is given, so as to aid the jury’s comprehension of the direction. See Judge’s Summing Up on Issues and Evidence.

    Notes

[1] - Between 14 September 2016 and 30 June 2017, ss37H(2) and (3) provided that intoxication is not self induced if it came about due to “use of a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation”. Sections 36B(2) and (3) do not currently have an equivalent provision regarding the use of medicinal cannabis products.

Last updated: 19 March 2018

See Also

7.3.1 - Consent and Consent-related Fault Element

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

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