Banditt v R [2005] HCA 80; 224 CLR 262; 80 ALJR 421; 157 A Crim R 420; 223 ALR 633

Banditt v R [2005] HCA 80; 224 CLR 262; 80 ALJR 421; 157 A Crim R 420; 223 ALR 633 - HCA 2005 case summary — Zoe

[126]

"... the Crown suggested to you late in the piece in his closing address, that even on the accused's point of view, you might find that he knew she was not consenting, because he was reckless. > > The law says, a person who has sexual intercourse with another, without the consent of that other person and who is reckless as to whether that other person consents or not, is to be taken to know that the other person is not consenting. So if you just go ahead and do it willy-nilly, not even considering whether the person is consenting or not, you are reckless and the law says you are deemed to know that the person is not consenting. > > It is in that context that the Crown argues, as I understand it, that even on his own version of things, the last attempt at intimacy, he had been rebuffed. He had no right to assume that she was going to consent on this night; it was after all half past 2 in the morning, she was asleep when he got there. There had been no prior arrangement between them. She was only, in his terminology, 'vaguely awake' and he had no right to consider that she was likely to be consenting, indeed he was reckless as to whether she did or not express consent. Or he may not have even thought about it. > > If you do not think about it of course, that is reckless in the extreme. What you have to concentrate on is what was in his mind. It is not a question of deciding whether you would have acted in the same way or whether the notional reasonable man would have acted in the same way in the situation in which the accused found himself. You have to consider what was in his mind. Did he have any basis for a belief that she was consenting or has the Crown persuaded you that he had in fact no basis for any such belief, either because he had penetrated her before she woke up and because there had been no prior sexual act between them and it is relevant to consider, as [counsel for the appellant] said to you yesterday, that he had, in fact, taken alcohol that night, because if he is intoxicated, that certainly does have an effect, to a greater or lesser extent, upon his capacity to form judgments about whether this is a reasonable thing to do and so on, as to whether it is appropriate to believe that she is consenting."

[136]

"Right, now the question you asked was whether it could be construed as consent if a woman, in a sort of half awake condition, non-verbally reacted in such a way as to appear to accommodate sexual intercourse, or words to that I think, and I said 'no, that's not consent'. That's not consent for two reasons: it's not a conscious decision, willingly, to co-operate in an act of sexual intercourse and or, perhaps these are alternatives, it may be a co-operative state brought about by a belief, for example, that the sexual partner is somebody else. You'll remember the evidence about dream states and her belief that, for at least a little while, that it was in fact somebody else. A mistake about the identity of the person with whom one is engaged in sex vitiates consent. There can be no consent to sex with the actual person if the apparent consent is brought about by this misunderstanding. So that's why it's not consent. The question that you framed. > > But the other question that I adverted to is really whether that may give rise to a belief on the part of the accused in this case that there was consent. There are two answers to that as well; or two reasons for the answer. You will remember that I told you that knowing that a person is not consenting can consist of actually knowing - I mean you may have asked and they have said 'no' so you know perfectly well that they are not consenting or it may consist of being reckless. Remember the law that I told you was that if a person has sexual intercourse with another without the consent of that person and if the offender is reckless as to whether that other person consents or not then they are taken to know that the person is not consenting. Now, recklessness is a factor to advert to in the question of whether the person is consenting or not. It does not have to be the product of conscious thought. If the offender does not even consider whether the woman is going to consent or not, then that is reckless and he is deemed to know that she is not consenting. If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness. But it is his state of mind that you are obliged to consider and including in that is the concept I discussed with you yesterday about the fact that he had had something to drink, just how drunk he was, how much he had sobered up, how capable he was of making this decision and so on. > > In the end the Crown has to prove to you beyond reasonable doubt (a) that she was not consenting - and it relies on her evidence for that, that she did not consent to sex with this accused. There may have been a time when she was under a misapprehension that she was consenting to sex with somebody else or having sex with somebody else, a sort of dream state, but that is not consent, as I have already explained to you. So the Crown relies on her evidence to say that she was not consenting and the Crown suggests that you will be persuaded beyond reasonable doubt that he either knew, because he penetrated her before she woke up, or he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead and did it anyway and the accused case is that he thought she had consented, and he had this belief."

[140]

"I accept counsel for the appellant's submission that recklessness was a real issue at the trial of the appellant and that it was necessary that the directions which the trial judge gave concerning recklessness and knowledge of absence of consent should have been correct. Even if recklessness had not been a real issue at the trial, the trial judge gave directions about recklessness and, those directions being given, it was important that those directions should have been correct. In Tolmie[48] Kirby P observed that, having regard to the issues at the trial in that case, the direction the trial judge had given about recklessness was unnecessary and it would have been preferable if it had not been given. However, his Honour continued: > > 'However, once given it was necessary that the direction should be made in accordance with the law, in case the jury might have acted upon it and been misled' > > The Crown can, of course, prove the element of an offence under s 61I, that the accused knew that the complainant did not consent to the sexual intercourse, by proving that the accused had that knowledge. However, s 61R of the Crimes Act provides that a person who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse. > > It is now well settled 'that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity, if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word 'reckless' in s 61R of the Crimes Act 1900'[49]. Although it is necessary to be cautious in using labels, such a form of recklessness can be described as 'non-advertent' recklessness. In the present trial the trial judge gave directions about non-advertent recklessness. The trial judge told the jury that a person who does not even consider whether the other person is consenting or not to sexual intercourse is reckless as to whether the other person is consenting to sexual intercourse. No complaint was made on this appeal about the directions the trial judge gave about non-advertent recklessness. > > Apart from non-advertent recklessness, it is clear that a person can be taken to know that the other person is not consenting to sexual intercourse by virtue of a kind of recklessness in which the first person has actually adverted to whether the other person is consenting to sexual intercourse. In my opinion, it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not be consenting and, notwithstanding that realisation, decides to proceed to have sexual intercourse with her and has such sexual intercourse, without there being some additional, independent requirement that he is determined to have sexual intercourse with her, whether or not she is consenting."

[141]

"As I have already indicated, it was common ground on the hearing of the appeal that, if it was reasonably possible that the accused believed that the complainant was consenting, the accused would have to be acquitted, whether or not there were any reasonable grounds for such a belief[51]. I accept that some of the expressions the trial judge used [in] the summing-up had the potential to be misleading, that it would have been prudent for the trial judge to have given the direction he was asked by counsel to give and that the trial judge did not in his further directions give such a direction. However, I have concluded that the directions the trial judge did give were sufficient to ensure that the jury had a correct understanding that it was not necessary that any belief the appellant had that the complainant was consenting should be based on reasonable grounds. The trial judge in his earlier directions did not in fact go so far as to say, as was suggested by counsel for the appellant ... that it was necessary that any belief that the complainant was consenting be based on reasonable grounds. The trial judge would, of course, have been entitled to tell the jury that, in determining whether in fact the appellant had believed or might reasonably possibly have believed that the complainant was consenting, the jury could examine whether there would have been any grounds for such a belief. [In] the summing-up the trial judge, correctly, stressed that what the jury had to concentrate on was what was in the appellant's mind and not what might have been in the mind of the notional reasonable man. The trial judge further directed the jury that it would be relevant to take into account the extent to which the appellant was intoxicated and this direction would have reinforced the earlier direction that what the jury had to determine was the actual state of mind of the appellant. > > In ... further directions ... the trial judge again told the jury that 'it is his state of mind that you are obliged to consider' and again referred to the possible effect of intoxication on the mental capacity of the appellant. The trial judge concluded the further directions by saying that 'the accused's case is that he thought she had consented and he had this belief'. In these further directions the trial judge did not say anything which would have suggested that a belief that the complainant was consenting would have to be based on reasonable grounds. At the conclusion of these further directions the trial judge asked counsel whether any other direction was sought and counsel for the appellant replied in the negative."

[157]

"The proposition that recklessness as to consent suffices as the required mental element of rape is made quite clear in these decisions, and accordingly section 61D(2) is not a novelty. It is emphasized that recklessness for the purpose of that subsection is intended to mean, and clearly does mean, subjective recklessness. The erroneous use of the term 'recklessness' as synonymous with 'gross negligence' is unfortunate and to be avoided. It confuses the important distinction between a mental element requiring the jury to make an assessment as to the state of mind of the accused himself at the relevant time, and a mental element requiring the jury to determine what would have been the state of mind of a reasonable person transposed into the particular situation at the relevant time. > > The proper use of the term 'recklessness' in relation to the law of rape is in terms of a subjective requirement: the decisions in Morgan, Maes, Brown and McEwan make this clear. Section 61D(2) does not attempt to introduce into New South Wales law the notion of sexual assault by negligence, even though it could perhaps be argued that for the period of years while R v Sperotto[65] was followed in New South Wales, we did have a law of rape by negligence. That decision is no longer law in New South Wales. Section 61D(2) is not an attempt to reintroduce its effect. > > That section 61D(2) should be interpreted subjectively is supported by the statutory expression of the rule in R v Morgan in section 1 of the UK Sexual Offences (Amendment) Act, 1976: > > '... a man commits rape if - > > (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and > > (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.' > > The latter words were certainly intended to, and have been interpreted so as to, require proof of subjective foresight of the possibility of non-consent. There is every reason why section 61D should be similarly interpreted. > > Both in England and New South Wales it is a defence to a charge of rape if the accused honestly believed at the relevant time that the other person consented to the sexual act alleged. More accurately, the Crown must prove that the accused, at the relevant time, foresaw at least the possibility of non-consent, but went ahead regardless. Any reasonable possibility that at the relevant time the accused held an honest belief that the other person did consent, must be eliminated by the prosecution. > > It follows from the definition of the offence established in section 61D that the so-called 'defence of honest mistake as to consent' which applies in relation to rape will also apply in relation to the new offence. Some criminal jurists take the view that the use of the term 'defence' in this context is misleading, because the Crown must affirmatively prove that there was no such honest belief, reasonable or otherwise, even if the accused sits mute and unrepresented through his trial. But in the realistic sense that a 'defence' means whatever forensic tactics the accused adopts in order to escape liability, it is correct to speak of the 'defence' of honest mistake as to consent."

At a glance

Court

Decision date

Before

Source

Judgment (245 paragraphs)

Banditt v R [2005] HCA 80; 224 CLR 262; 80 ALJR 421; 157 A Crim R 420; 223 ALR 633 (15 December 2005)

Parties

Legislation Cited (20)

Cases Cited (9)