BOCHKOV, Vladimir v Regina [2009] NSWCCA 166

BOCHKOV, Vladimir v Regina [2009] NSWCCA 166

The appeal failed because the two alternative bases of absence of consent were open on the evidence and did not require separate counts; recklessness as to consent was part of the Crown case from the opening and was open on the evidence; the trial judge's supplementary directions correctly confined recklessness to the scenario based on the complainant's words and actions and correctly explained its relationship to knowledge; the directions under s 61R(2)(b) were correct; and neither the English language evidence nor the alleged tactical framing of the Crown case produced unfairness or a miscarriage of justice.

Jurisdiction
Australia
Judgment Date
08 July 2009
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal
Outcome
Appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'consent' 'mistaken Belief as to Identity' 'knowledge of Absence of Consent' 'recklessness' 'jury Directions' 'miscarriage of Justice']
['criminal Law'] ['sexual Intercourse Without Consent' 'consent' 'mistaken Belief as to Identity' 'knowledge of Absence of Consent' 'recklessness' 'jury Directions' 'miscarriage of Justice']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the Crown could rely on alternative bases that the complainant did not consent in fact and that any consent was under a mistaken belief as to identity.' 'Whether the indictment required alternatively framed counts for sexual intercourse without consent and sexual intercourse with consent under a mistaken belief.' 'Whether recklessness as to consent was part of the Crown case and open on the evidence.' "Whether the trial judge's directions on consent, vitiation of consent, knowledge, recklessness and honest mistaken belief caused a miscarriage of justice." "Whether evidence concerning the appellant's ability to comprehend and express himself in English caused a miscarriage of justice." 'Whether the Crown sought unfair tactical advantage in the way it framed and conducted its case.']

Ratio Decidendi

The appeal failed because the two alternative bases of absence of consent were open on the evidence and did not require separate counts; recklessness as to consent was part of the Crown case from the opening and was open on the evidence; the trial judge's supplementary directions correctly confined recklessness to the scenario based on the complainant's words and actions and correctly explained its relationship to knowledge; the directions under s 61R(2)(b) were correct; and neither the English language evidence nor the alleged tactical framing of the Crown case produced unfairness or a miscarriage of justice.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']