R v MK [2022] NSWDC 245

R v MK [2022] NSWDC 245

No consent direction under ss 292A–292E was to be given because consent was not in dispute, the real issue was whether the alleged sexual activity occurred at all, and giving the directions would be unnecessary, likely to confuse the jury, and liable to deflect attention from the real issue in the trial. Section 292D was construed as a consent direction limited to the issue of consent, not as a general direction about demeanour or distress when giving evidence.

Jurisdiction
Australia
Judgment Date
21 June 2022
Procedural Posture
Criminal Trial for Aggravated Sexual Assault and Sexual Assault Offences / Interlocutory Determination During Trial on Whether to Give Consent Directions Under S 292 of the Criminal Procedure Act 1986 (nsw)
Outcome
Consent directions under s 292 were not given; good reason to give them was not demonstrated.
Legal Topics
['sexual Assault Proceedings' 'jury Directions' 'consent Directions' 'construction of S 292 D of the Criminal Procedure Act 1986 (nsw)']
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Assault Proceedings' 'jury Directions' 'consent Directions' 'construction of S 292 D of the Criminal Procedure Act 1986 (nsw)']

Case Brief

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Procedural Posture

Criminal Trial for Aggravated Sexual Assault and Sexual Assault Offences / Interlocutory Determination During Trial on Whether to Give Consent Directions Under S 292 of the Criminal Procedure Act 1986 (nsw)

Legal Issues

  1. 1 ['Whether any consent direction under ss 292A–292E of the Criminal Procedure Act 1986 (NSW) should be given where consent was not in issue.' 'Whether s 292D is limited to issues of consent or is a direction at large concerning responses to giving evidence.']

Ratio Decidendi

No consent direction under ss 292A–292E was to be given because consent was not in dispute, the real issue was whether the alleged sexual activity occurred at all, and giving the directions would be unnecessary, likely to confuse the jury, and liable to deflect attention from the real issue in the trial. Section 292D was construed as a consent direction limited to the issue of consent, not as a general direction about demeanour or distress when giving evidence.

Court Disposition

Consent directions under s 292 were not given; good reason to give them was not demonstrated.

Orders

  • ['No consent directions under ss 292A–292E of the Criminal Procedure Act 1986 (NSW) were given.']