K B v The Queen

[2013] VSCA 137

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sexual offences
3. › Rape
4. › Directions to jury
5. › Onus of proof
6. › Whether trial judge's comments reversed onus of proof
7. › Whether charge as a whole sufficiently directed jury on burden of proof
1. Criminal Law
2. › Sexual offences
3. › Rape
4. › Consent
5. › Awareness of non-consent
6. › Direction on accused's belief in consent
7. › Whether direction required under s 37AA of Crimes Act 1958 (Vic)
8. › Whether evidence led or assertion made that accused believed complainant was consenting
9. › Crimes Act 1958 (Vic), ss 36, 37, 37AA, 38(2)
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Substantial miscarriage of justice
5. › Whether conviction inevitable
6. › Criminal Procedure Act 2009 (Vic), s 276(1)(b) and (c)

Quick Take

Section 37AA of the Crimes Act 1958 (Vic) directions on belief in consent are not required where the accused's out-of-court statements assert only lack of memory or sensation due to drug use, rather than a positive belief that the complainant was consenting. An accused's claim of being 'blank' or 'numb' from cannabis does not constitute evidence led or an assertion made of a belief in consent within the meaning of s 37AA.