Regina v Banditt [2004] NSWCCA 208

Regina v Banditt [2004] NSWCCA 208

The trial judge's directions that recklessness existed if the appellant was aware of a possibility that the complainant was not consenting and went ahead anyway were substantially consistent with authority and correctly expressed advertent recklessness. Although some earlier expressions in the summing-up had potential to mislead, the summing-up as a whole directed the jury to consider the appellant's actual state of mind and did not require any belief in consent to be based on reasonable grounds. No sentencing error was demonstrated because the mitigating matters relied on had been taken into account by the sentencing judge.

Jurisdiction
Australia
Judgment Date
04 August 2004
Procedural Posture
Criminal Appeal / Appeal Against Conviction; Application for Leave to Appeal Against Sentence
Outcome
Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.
Legal Topics
['sexual Assault' 'break and Enter' 'consent to Sexual Intercourse' 'recklessness as to Consent' 'jury Directions' 'appeal Against Conviction' 'appeal Against Sentence']
['criminal Law' 'criminal Procedure' 'sentencing'] ['sexual Assault' 'break and Enter' 'consent to Sexual Intercourse' 'recklessness as to Consent' 'jury Directions' 'appeal Against Conviction' 'appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction; Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the trial judge erred in directing the jury on recklessness as to whether the complainant consented to sexual intercourse.' 'Whether an accused is reckless if aware of a possibility that the complainant is not consenting and proceeds to have sexual intercourse.' 'Whether the jury may have been misled into applying an objective test by references to the appellant having no right or no basis to assume consent.' 'Whether any error was shown in the sentence imposed.']

Ratio Decidendi

The trial judge's directions that recklessness existed if the appellant was aware of a possibility that the complainant was not consenting and went ahead anyway were substantially consistent with authority and correctly expressed advertent recklessness. Although some earlier expressions in the summing-up had potential to mislead, the summing-up as a whole directed the jury to consider the appellant's actual state of mind and did not require any belief in consent to be based on reasonable grounds. No sentencing error was demonstrated because the mitigating matters relied on had been taken into account by the sentencing judge.

Court Disposition

Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.

Orders

  • ['Appeal against conviction dismissed.' 'Leave to appeal against sentence granted.' 'Appeal against sentence dismissed.']