The Queen v BW - [2012] NTSC 29

The Queen v BW [2012] NTSC 29
PARTIES: The Queen

v
BW

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   21103872
DELIVERED:   27 April 2012
HEARING DATES:   14 February 2012
JUDGMENT OF:   BLOKLAND J
CATCHWORDS:

Ruling on Voir Dire – Exclusion of recklessness from charge of attempt sexual intercourse without consent on indictment – fault element for attempt – special liability provision – exclusion of parts of the record of conservation
Criminal Code (NT) s 43AK, s 43AN, s 43AX, s 43BF, s 192(3), s 192(4A), s 192(5),
Criminal Code (CW) s 11.1.3

Knight v The Queen (1992) 175 CLR 495; Mohan [1976] 1 QB 1; applied
R v Lindsay [1963] Qd R 386; R v Doyle, ex parte Attorney General [1987] QD R 732; followed
Banditt v The Queen (2005) 224 CLR 262; Hulley v Hill (1993) 69 A Crim R 52; R v Campbell & Baka (No 2) [2007] NSWDC 168; R v Evans (1987) 48 SASR 35; R v Kalajdic and Italiano (2005) 157 A Crim R 300; R v LK; R v RK (2010) 241 CLR 177; The Queen v Geoffrey Gordon (unreported), 21 June 2011 SCC 2093963; The Queen v Khan [1990] 1 WLR 813;
WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275; referred to
O’Meara v R [2009] NSWCCA 90; not followed
Ian Leader-Elliot, ‘The Commonwealth Criminal Code, A Guide for Practitioners’
Odgers, ‘Principles of Federal Criminal Law’ second edition.
REPRESENTATION:
Counsel:
The Crown:   Mr Morters
Accused:   Mr Brock
Solicitors:
The Crown:   Office of the Director of Public Prosecutions
Accused:   North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:   BLO 1205
Number of pages:   17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v BW [2012] NTSC 29

No. 21103872
BETWEEN:

The Queen

Appellant

AND:

BW

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 27 April 2012)
Ruling on Count 2 of the Indictment

In the context of dealing with pre-trial issues, application was made on behalf of the accused to exclude recklessness from a charge of attempt to have sexual intercourse without consent.[1] Currently the charge reads:
“On 31 January 2011 at Darwin in the Northern Territory of Australia, attempted to have sexual intercourse with [the complainant] without her consent and knowing about or being reckless as to the lack of consent”.
The accused argues that as a matter of law, recklessness is not capable of constituting the fault element for the charge of attempt to have sexual intercourse without consent. It is argued that when the charge is one of attempt, only “intention” to engage in the conduct and “knowledge” of lack of consent will suffice: Section 43BF of the Criminal Code provides intention and knowledge are the fault elements in relation to each physical element of the offence attempted.
The Crown argues that notwithstanding s 43BF of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v BW

Details

AGLC: The Queen v BW [2012] NTSC 29
Case: [2012] NTSC 29
Decision Date: 27/04/2012

CaseChat Overview and Summary

The case before the court involved an individual, BW, who was charged with the attempted sexual intercourse without consent. The ruling on the voir dire questioned whether the jury should consider recklessness, in addition to intent, as a fault element in the charge of the offence. The court was also required to determine whether certain parts of the record of conversation should be excluded from the evidence presented to the jury.

The legal issues in the case revolved around the fault element required for the charge of attempt to commit a sexual offence without consent. The court had to consider whether recklessness was an appropriate fault element for the charge, and if so, whether it should be left to the jury's discretion. Additionally, the court needed to assess whether certain parts of the record of conversation should be excluded from the evidence presented to the jury, as they may have been prejudicial to the defendant.

The court held that recklessness was not an appropriate fault element for the charge of attempting to commit a sexual offence without consent. The court reasoned that the special liability provision for such offences required a higher level of fault than recklessness, and that the fault element for the charge should be limited to intent. The court also determined that certain parts of the record of conversation should be excluded from the evidence presented to the jury, as they may have been prejudicial to the defendant.

The court's ruling on the voir dire resulted in the exclusion of recklessness as a fault element for the charge of attempting to commit a sexual offence without consent, and the exclusion of certain parts of the record of conversation from the evidence presented to the jury. The case highlights the importance of carefully considering the fault element for charges related to sexual offences and the need to balance the admissibility of evidence with the protection of the defendant's rights.

Orders