Where the defence to a sexual offence is that the accused was asleep or unconscious, the trial judge must direct the jury that the act must be conscious, voluntary and deliberate, and not merely that the accused must have intended the act. However, the proviso may apply where the direction on intent inherently required the jury to resolve the factual question of consciousness, and the evidence did not give rise to a hypothesis that the accused was awake but acting involuntarily. The decision in R v AJS does not establish that the use of the term 'external genitalia' in defining 'vagina' is a prima facie defect in a jury direction.
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