Regina v Banditt

In the case of Regina v Banditt, the defendant was charged with sexual assault under section 61I of the Crimes Act. The dispute arose from an incident where the defendant engaged in sexual intercourse with a complainant who was asleep at the time. The matter was heard in the Supreme Court of Queensland. The primary legal issue the court had to decide was whether the defendant's belief about the complainant's consent was genuinely held and reasonable, or if it was so unreasonable as to amount to recklessness. The court also needed to consider the nature of consent in the context of sexual activity and the meaning of recklessness in this statutory context.

The court held that recklessness in this context required a high degree of indifference to the truth of the complainant's consent. It was not enough for the defendant to have been mistaken in their belief that the complainant had consented; the belief must also have been unreasonable. The court found that the defendant's belief was indeed unreasonable, given the complainant's incapacitated state. The defendant's belief did not meet the threshold of recklessness, as it was not a matter of indifference to the truth of the complainant's consent but rather an honest mistake. The court therefore acquitted the defendant of the charge of sexual assault.