A s 37AAA(d) direction should not be given where the prosecution case is that the complainant positively communicated non-consent; the direction is confined to cases where the absence of communication about consent is the relevant factual issue. The use of 'must' in a s 37AAA(d) direction (telling the jury they must find absence of consent) is erroneous — the correct formulation is that the fact is 'enough to show' absence of consent but does not compel that finding. Where evidence on individual charges within a series of similar offences is sparse and undifferentiated, and the accused is acquitted on the charge supported by the most detailed evidence, the remaining convictions may be unreasonable.
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