(c) the accused satisfies the court on the balance S. 45(4)(c) of probabilities that he or she believed on amended by No. 2/2006 reasonable grounds that he or she was s. 9(1). married to the child. (4A) If consent is relevant to a charge under S. 45(4A) inserted by subsection (1), the prosecution bears the burden of No. 2/2006 proving lack of consent. s. 9(2). S. 45(5) (5) A circumstance of aggravation described in amended by subsection (2) is not an element of an offence No. 68/2009 against subsection (1) but must be stated in the s. 97(Sch. item 40.3). indictment. (6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt. (7) A circumstance of aggravation described in subsection (2)— (a) is to be determined by the jury if the accused pleads not guilty to the offence; and (b) is to be determined by the trial judge if the accused pleads guilty to the offence. (8) An offender who pleads not guilty to an offence against subsection (1) is to be taken to have pleaded guilty to the offence for the purposes of section 5(2)(e) of the if— Sentencing Act 1991 (a) he or she— (i) took issue with a circumstance of aggravation described in subsection (2); and
S. 45(4)(c) amended by No. 2/2006 s. 9(1). (c) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child. S. 45(4A) inserted by No. 2/2006 s. 9(2). (4A) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent. S. 45(5) amended by No. 68/2009 s. 97(Sch. item 40.3). (5) A circumstance of aggravation described in subsection (2) is not an element of an offence against subsection (1) but must be stated in the indictment. (6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt. (7) A circumstance of aggravation described in subsection (2)— (a) is to be determined by the jury if the accused pleads not guilty to the offence; and (b) is to be determined by the trial judge if the accused pleads guilty to the offence. (8) An offender who pleads not guilty to an offence against subsection (1) is to be taken to have pleaded guilty to the offence for the purposes of section 5(2)(e) of the Sentencing Act 1991 if— (a) he or she— (i) took issue with a circumstance of aggravation described in subsection (2); and
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