Banditt v The Queen

Criminal 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).