Sexual violation by rape (Section 128 Crimes Act 1961)
Charge 1: Sexual violation by rape under section 128 of the Crimes Act 1961
The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. This is called the standard of proof. It means you must be sure that each element is proved.
| 1. | Are you sure that Mr Smith penetrated the genitalia of Ms Jones with his penis? |
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The slightest degree of introduction of the penis into the genitalia will be sufficient. If no, find Mr Smith not guilty. If yes, go to question two. |
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| 2. | Are you sure that Ms Jones did not consent to that act? |
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"Consent" means consent freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not, of itself, amount to consent. If no, find Mr Smith not guilty. If yes, go to question three. |
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3.
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Are you sure that either: a. at the time Mr Smith penetrated the genitalia of Ms Jones with his penis, Mr Smith did not believe that Ms Jones was consenting? OR b. at the time Mr Smith penetrated the genitalia of Ms Jones with his penis, there were not reasonable grounds for Mr Smith to believe that Ms Jones was consenting? Note: All 12 of you do not need to agree on which of (a) or (b) above applies, as long as all 12 of you are sure that either (a) or (b) applies. If no, find Mr Smith not guilty. If yes, find Mr Smith guilty. |