R v DMC

In the case of R v DMC, the respondent was charged with assault occasioning actual bodily harm and kidnapping. The respondent appealed against conviction, arguing that the jury was misdirected on the issue of consent. The appeal was heard in the High Court of Australia. The primary legal issue the court had to address was whether the prosecution needed to prove that the accused did not believe the victim consented to the physical contact. Additionally, the court had to determine if physical contact could be considered an ordinary incident of social intercourse and if consent could be implicit and general rather than specific to the contact in question.

The court began by noting that consent must be an informed and voluntary agreement to the particular physical contact in question. The prosecution must prove that the accused did not believe the victim consented to the contact, not just that the victim did not consent. The court held that consent must be informed and voluntary, meaning the accused must have believed the victim consented to the specific contact. The court further clarified that physical contact could be an ordinary incident of social intercourse, but the consent must still be informed and voluntary. Consent could be implicit and general, but it must still be specific to the contact in question.

The court found that the jury was misdirected in its understanding of the requirement for the prosecution to prove the absence of a belief in consent. The court held that the jury should have been directed to consider whether the accused believed the victim consented to the specific contact. The court also found that the jury was misdirected on the issue of kidnapping, holding that the intention to hold must be an intention to hold irrespective of the willingness or consent of the victim. The court held that the jury should have been directed to consider whether the accused intended to hold the victim irrespective of the victim's willingness or consent.

The High Court allowed the appeal, quashed the convictions, and ordered a retrial. The court held that the jury was misdirected on the issue of consent and that the prosecution must prove that the accused did not believe the victim consented to the specific contact. The court also held that the jury was misdirected on the issue of kidnapping, holding that the intention to hold must be an intention to hold irrespective of the willingness or consent of the victim.