45Application of Division

45 Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against any provision in Subdivision (8A), (8B), (8C) or (8D) of Division 1 of Part I of the Crimes Act 1958 or a charge for an offence of conspiracy, incitement or attempt to commit an offence against any of those provisions.

Note to s. 45 inserted by No. 47/2016 s. 26, substituted as Notes by No. 38/2022 s. 45.

1 Subdivision (8A) provides for rape, sexual assault and associated sexual offences.

2 Subdivision (8B) provides for sexual offences against children.

3 Subdivision (8C) provides for incest offences.

4 Subdivision (8D) provides for child abuse material offences.

5 These Subdivisions of Division 1 of Part I of the Crimes Act 1958 came into operation on 1 July 2015.

46 Direction on consent

(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 to s. 46(2) amended by Nos 47/2016 s. 27(1), 5/2018 s. 19, substituted by 38/2022 s. 15(1).[1]

Section 36 of the Crimes Act 1958 provides that consent means free and voluntary agreement. Section 36AA of that Act sets out circumstances in which a person does not consent.

(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

S. 46(3)(b) amended by No. 38/2022 s. 46(1).

(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.

S. 46(3)(c) substituted by No. 47/2016 s. 27(2), repealed by No. 38/2022 s. 46(2).

S. 46(3)(d)(e) inserted by No. 47/2016 s. 27(2), repealed by No. 38/2022 s. 46(2).

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