R v Lazarus [2017] NSWCCA 279

R v Lazarus [2017] NSWCCA 279

Her Honour's revision was permissible as it objectively conformed to the correct legal principle established in s.61HA(3)(e) Crimes Act 1900 (NSW) and the trial submissions, and error regarding self-induced intoxication was not made out. However, the trial judge failed to explicitly direct herself to consider 'steps taken' by the accused to ascertain consent as required by s.61HA(3)(d), constituting error of law. The Court exercised its discretion, finding that a third trial would be oppressive, given time elapsed, stress endured, absence of respondent fault, and completed service of sentence, and therefore dismissed the Crown appeal.

Jurisdiction
Australia
Judgment Date
27 November 2017
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
Crown appeal dismissed
Legal Topics
['revision of Reasons' 'knowledge About Consent' 'sexual Assault' 'judicial Discretion' 'publication Restrictions' 'legal Profession Conduct Rules']
['criminal Law' 'practice and Procedure'] ['revision of Reasons' 'knowledge About Consent' 'sexual Assault' 'judicial Discretion' 'publication Restrictions' 'legal Profession Conduct Rules']

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Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 ["Whether the trial judge erred in taking into account the respondent's self-induced intoxication for the purpose of determining reasonable grounds for belief in consent under s.61HA(3)(e) Crimes Act 1900 (NSW)" "Whether the trial judge erred in failing to direct herself to consider 'steps taken' by the respondent to ascertain consent under s.61HA(3)(d) Crimes Act 1900 (NSW)" 'Permissibility and scope of revision of oral reasons in criminal proceedings']

Ratio Decidendi

Her Honour's revision was permissible as it objectively conformed to the correct legal principle established in s.61HA(3)(e) Crimes Act 1900 (NSW) and the trial submissions, and error regarding self-induced intoxication was not made out. However, the trial judge failed to explicitly direct herself to consider 'steps taken' by the accused to ascertain consent as required by s.61HA(3)(d), constituting error of law. The Court exercised its discretion, finding that a third trial would be oppressive, given time elapsed, stress endured, absence of respondent fault, and completed service of sentence, and therefore dismissed the Crown appeal.

Court Disposition

Crown appeal dismissed

Orders

  • ['The Crown appeal is dismissed.' 'Upon publication of these reasons, the order made on 1 September 2017 pursuant to s.111(2) of the Crimes (Appeal and Review) Act 2001 (NSW) prohibiting the publication of anything which might identify the respondent, will cease to have effect pursuant to s.111(5) of that Act.']