R v Winchester

This decision was handed down in 2011 by the Court of Appeal. It has not yet been reported, however, it should be. The Editor is grateful to Margaret Wilson J for drawing it to his attention.

The import of the decision concerns the discussion by the Court of Appeal of the nature of consent in s 348 of the Criminal Code and, in particular, the circumstances in which consent is not freely and voluntarily given. The issue before the Court concerned whether consent was not free and voluntary merely because it was obtained by some pressure or inducement. Muir J held that it could not be said that consent was not free and voluntary where it was influenced by a promise or offer which is a normal part of social interaction. His Honour held that it would be exceptional for a consent which was induced by the promise of a gift to be found not to be free and voluntary. The reasons of Chesterman JA contain an interesting analysis of the changes to the concept of “consent” which was made by the amendments to the Criminal Code in 2000 and the extent to which consent induced by fraud renders the consent not free and voluntary.