Banditt v The Queen

In *Banditt v The Queen*, the High Court of Australia considered an appeal by the appellant against his conviction for sexual assault. The dispute centred on the interpretation of "reckless" within the context of the offence of break and enter and commit a serious indictable offence, specifically sexual assault, under s 61R(1) of the *Crimes Act 1900* (NSW). The complainant alleged the appellant had intercourse with her while she was asleep, without her consent. The appellant contended that the complainant was awake and had consented, and that he believed she was consenting.

The central legal issue before the High Court was whether the trial judge had erred in directing the jury that the appellant could have been found guilty if he was merely reckless as to the complainant's consent. This raised questions about the precise meaning of "recklessness" in this context: whether it required more than simply being aware of the possibility that the complainant was not consenting, or if it necessitated a determination to proceed with intercourse regardless of any lack of consent. The court also considered whether juries should be directed to apply an ordinary understanding of the term "recklessness".

The High Court dismissed the appeal. Their Honours reasoned that the statutory definition of recklessness in s 61R(1) of the *Crimes Act 1900* (NSW) encompassed a state of mind where the accused was aware of a substantial risk that the complainant was not consenting and, despite that risk, proceeded with the sexual act. The court held that the trial judge's direction, which allowed the jury to find recklessness based on the appellant's advertence to the possibility of non-consent and his decision to proceed, was a correct application of the law. The ordinary understanding of recklessness, which involves awareness of a risk and proceeding nonetheless, was deemed appropriate for jury consideration.