Banditt v The Queen

HIGH COURT OF AUSTRALIAGUMMOW, HAYNE, CALLINAN AND HEYDON JJSTEPHEN GARRY BANDITT  APPELLANTANDTHE QUEEN   RESPONDENTBanditt v The Queen[2005] HCA 8015 December 2005S216/2005ORDERAppeal dismissed.On appeal from the Supreme Court of New South WalesRepresentation:S J Odgers SC with A Francis for the appellant (instructed by Legal Aid Commission of New South Wales)G E Smith SC with C McPherson for the respondent (instructed by Solicitor for Public Prosecutions (New South Wales))Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSBanditt v The QueenCriminal law – Break and enter and commit serious indictable offence – Sexual assault – Recklessness as to consent – Appellant broke and entered complainant's house at night while complainant asleep – Complainant alleged appellant commenced intercourse while complainant asleep – Appellant claimed that complainant was awake and consented to intercourse and that appellant thought complainant was consenting – Complainant had rejected appellant's advances on a previous occasion – Whether trial judge erred in directing jury that appellant could have known complainant was not consenting because he was reckless as to consent – Whether recklessness requires more than advertence to possibility of lack of consent or requires determination to proceed with intercourse regardless of lack of consent – Whether appropriate to direct juries to apply an ordinary understanding of "recklessness".Words and phrases – "reckless".Crimes Act 1900 (NSW), ss 61I, 61R, 112(1).GUMMOW, HAYNE AND HEYDON JJ.   The term "reckless" has various uses as a criterion of legal liability.  This appeal turns...