47Direction on reasonable belief in consent

47 Direction on reasonable belief in consent

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on 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 one or more of the directions set out in subsection (3).

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

S. 47(3)(a) amended by Nos 47/2016 s. 28(1), 38/2022 s. 16.

(a) direct the jury that if the jury concludes that the accused knew or believed that a circumstance referred to in section 36AA 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

S. 47(3)(b)(ii) amended by No. 47/2016 s. 28(2).

(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

S. 47(3)(c) inserted by No. 47/2016 s. 28(3), repealed by No. 38/2022 s. 47.

S. 47(3)(d) inserted by No. 47/2016 s. 28(3).

(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

S. 47(3)(e) inserted by No. 47/2016 s. 28(3).

(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.

S. 47(4) inserted by No. 47/2016 s. 28(4).

(4) A good reason for not giving the direction set out in subsection (3)(e) 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.