Under the Crimes Act 1958 (Vic), awareness that a complainant might be asleep (a s 36 circumstance) is not equivalent to awareness that the complainant is not or might not be consenting for the purposes of establishing the mens rea for rape under s 38(2). The jury must be directed to consider awareness of sleep as a factor relevant to the reasonableness of the accused's asserted belief in consent under s 37AA, not as directly establishing the mental element. The proviso to s 568(1) cannot be applied where the erroneous direction goes to the central issue of consent and the accused's perception of consent.
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