CITATION: R v Gust [1999] NSWCCA 265 FILE NUMBER(S): CCA 60651 of 1997 HEARING DATE(S): 29/07/1999 JUDGMENT DATE:
22 October 1999PARTIES :
Colin Alfred Gust (appellant)
Regina (respondent)JUDGMENT OF: Dunford J at 1; Hidden J at 25; Smart AJ at 62
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 96/31/0137 LOWER COURT JUDICIAL OFFICER: Nader DCJ
COUNSEL: C. Bruce (appellant)
C.K. Maxwell (Crown)SOLICITORS: Legal Aid Commission (appellant)
Director of Public Prosecutions (Crown)CATCHWORDS: CRIMINAL LAW - sexual assault - whether verdict unreasonable - directions on recklessness as to consent and complaint - whether warning about complainant's evidence required ACTS CITED: Crimes Act 1900
Evidence Act 1995CASES CITED: R v Hemsley (1988) 36 ACrim R 334
Pemble v The Queen (1971) 124 CLR 107
Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
R v D (1996) 86 ACrim R 41
M v The Queen (1994) 181 CLR 487
R v Kitchener (1993) 29 NSWLR 696
Tolmie (1996) 84 ACrim R 293
Crofts v The Queen (1996) 186 CLR 427
R v Lemura (CCA unreported 18 December 1998)
Papakosmas v The Queen [1999] HCA 37
R v Davis [1999] NSWCCA 15
R v Murray (1987) 11 NSWLR 12
R v Zafiris (CCA unreported 14 September 1998)
R v Vawdrey (CCA unreported 16 April 1998)DECISION: Appeal dismissed (by majority)
IN THE COURT OF
CRIMINAL APPEAL60651/97
DUNFORD J
HIDDEN J
SMART AJ
Friday 22 October 1999R v Colin Alfred GUST1 DUNFORD J: This is an appeal by Colin Alfred Gust against his conviction in the District Court at East Maitland, following his trial before his Honour Acting Judge Nader QC and a jury on a charge of sexual intercourse without consent contrary to s 61I Crimes Act 1900. The appellant also seeks leave to appeal against the sentence of a minimum term of 3 years penal servitude with an additional term of 3 years imposed on him following his conviction. The offence carries a maximum penalty of 14 years penal servitude. 2 The facts of the matter are sufficiently set out in the judgment of Hidden J, which I have had the advantage of reading in draft form. For the reasons given by his Honour, I am not satisfied that this is a case where the jury acting reasonably ought to have had a reasonable doubt and accordingly the ground of appeal that the conviction is unreasonable and cannot be supported by the evidence has not been made out. 3 However, I am not satisfied that there should be a new trial because of the direction given by the trial judge on recklessness in relation to consent.
JUDGMENT4 Some time was spent by counsel on the hearing of the appeal discussing whether there was or was not any basis for the jury to conclude that the appellant was reckless as to whether the appellant was consenting. Not having seen the witnesses…
Directions on Recklessness
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- AGLC
- R v Gust [1999] NSWCCA 265
- Case
- [1999] NSWCCA 265
- Decision Date
CaseChat Overview and Summary
The case before the court involved a criminal appeal by the respondent, who had been found guilty of sexual assault. The respondent had been convicted based on the testimony of the complainant, who alleged that the respondent had engaged in sexual activity with her without her consent. The appeal was heard by the High Court of Australia, which was asked to determine whether the verdict was unreasonable and whether there were any errors in the trial judge's directions regarding recklessness as to consent and the need for a warning about the complainant's evidence.
The primary legal issue before the court was whether the verdict of the jury was unreasonable and whether the trial judge erred in their directions to the jury regarding recklessness as to consent and the need for a warning about the complainant's evidence. The court was required to consider the sufficiency of the evidence and the appropriateness of the trial judge's instructions to the jury on the relevant legal principles.
The court found that the verdict was not unreasonable and that the trial judge's directions to the jury were appropriate. The court held that the evidence was sufficient to support the jury's conclusion that the respondent was reckless as to whether the complainant consented to the sexual activity. The court also found that the trial judge had correctly directed the jury on the legal principles regarding recklessness as to consent and that there was no requirement for a warning about the complainant's evidence. The court concluded that the appeal should be dismissed, and the conviction and sentence of the respondent should be upheld.
The court's decision was that the appeal was to be dismissed, and the conviction and sentence of the respondent were to be upheld. The court found that the trial judge had properly directed the jury on the relevant legal principles and that there were no errors in the trial that would warrant a new trial or an acquittal. The court also found that the evidence was sufficient to support the jury's conclusion that the respondent was reckless as to whether the complainant consented to the sexual activity. The final order of the court was that the appeal was dismissed, and the conviction and sentence of the respondent were to be upheld.
The primary legal issue before the court was whether the verdict of the jury was unreasonable and whether the trial judge erred in their directions to the jury regarding recklessness as to consent and the need for a warning about the complainant's evidence. The court was required to consider the sufficiency of the evidence and the appropriateness of the trial judge's instructions to the jury on the relevant legal principles.
The court found that the verdict was not unreasonable and that the trial judge's directions to the jury were appropriate. The court held that the evidence was sufficient to support the jury's conclusion that the respondent was reckless as to whether the complainant consented to the sexual activity. The court also found that the trial judge had correctly directed the jury on the legal principles regarding recklessness as to consent and that there was no requirement for a warning about the complainant's evidence. The court concluded that the appeal should be dismissed, and the conviction and sentence of the respondent should be upheld.
The court's decision was that the appeal was to be dismissed, and the conviction and sentence of the respondent were to be upheld. The court found that the trial judge had properly directed the jury on the relevant legal principles and that there were no errors in the trial that would warrant a new trial or an acquittal. The court also found that the evidence was sufficient to support the jury's conclusion that the respondent was reckless as to whether the complainant consented to the sexual activity. The final order of the court was that the appeal was dismissed, and the conviction and sentence of the respondent were to be upheld.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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