R v Gust [2000] NSWCCA 287

R v Gust [2000] NSWCCA 287

The applicant was not denied procedural fairness. Because Rule 4 of the Criminal Appeal Rules required leave to argue the ground, it was for the applicant's counsel to put all relevant material and submissions before the Court, including any trial address transcript said to show recklessness was not in issue. The Court was not obliged to draw counsel's attention to every subsidiary consideration or to advise how to present the case, and the absence of reference to recklessness in the addresses would in any event have made no difference to Dunford J's earlier judgment.

Jurisdiction
Australia
Judgment Date
04 August 2000
Procedural Posture
Criminal Appeal; Application to Re Open Appeal / Application to Re Open Dismissed
Outcome
Application dismissed.
Legal Topics
['application to Re Open Appeal' 'procedural Fairness' 'sexual Intercourse Without Consent' 'jury Directions on Recklessness as to Consent']
['criminal Law' 'criminal Procedure'] ['application to Re Open Appeal' 'procedural Fairness' 'sexual Intercourse Without Consent' 'jury Directions on Recklessness as to Consent']

Case Brief

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Procedural Posture

Criminal Appeal; Application to Re Open Appeal / Application to Re Open Dismissed

Legal Issues

  1. 1 ['Whether the Court of Criminal Appeal had power to re-open an appeal after it had been heard and determined where denial of procedural fairness was alleged.' 'Whether the applicant was denied procedural fairness because the Court did not give counsel notice that it might refer to the absence of transcripts of trial addresses when dealing with the recklessness direction ground.' 'Whether the absence of any reference to recklessness in the trial addresses would have affected the prior determination of the appeal.']

Ratio Decidendi

The applicant was not denied procedural fairness. Because Rule 4 of the Criminal Appeal Rules required leave to argue the ground, it was for the applicant's counsel to put all relevant material and submissions before the Court, including any trial address transcript said to show recklessness was not in issue. The Court was not obliged to draw counsel's attention to every subsidiary consideration or to advise how to present the case, and the absence of reference to recklessness in the addresses would in any event have made no difference to Dunford J's earlier judgment.

Court Disposition

Application dismissed.

Orders

  • ['Application dismissed.']