A misdirection withdrawing the elements of absence of consent and knowledge of absence of consent from the jury in a s 61J prosecution does not necessarily result in a substantial miscarriage of justice where the defence case was conducted entirely on the basis that no sexual intercourse occurred and was inconsistent with any suggestion of consent. Sentencing judges must not have regard, even indirectly, to standard non-parole periods introduced after the date of the offences; the only safe course is to note that the standard non-parole periods have no application.
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