Banditt v R

• Jurisdiction: Australia Federal only
• Judge: Gummow,Hayne,Heydon JJ,Callinan J
• Judgment Date: 15 December 2005
• Neutral Citation: [2005] HCA 80,2005-1215 HCA A
• Court: High Court
• Docket Number: S216/2005
• Date: 15 December 2005

[2005] HCA 80

HIGH COURT OF AUSTRALIA

Gummow, Hayne, Callinan AND Heydon JJ

S216/2005

Stephen Garry Banditt

Appellant

and

The Queen

Respondent

Crimes Act 1900 (NSW), ss 61I, 61R, 112(1).

Banditt v The Queen

Criminal law — Break and enter and commit serious indictable offence — Sexual assault — Recklessness as to consent — Appellant broke and entered complainant's house at night while complainant asleep — Complainant alleged appellant commenced intercourse while complainant asleep — Appellant claimed that complainant was awake and consented to intercourse and that appellant thought complainant was consenting — Complainant had rejected appellant's advances on a previous occasion — Whether trial judge erred in directing jury that appellant could have known complainant was not consenting because he was reckless as to consent — Whether recklessness requires more than advertence to possibility of lack of consent or requires determination to proceed with intercourse regardless of lack of consent — Whether appropriate to direct juries to apply an ordinary understanding of ‘recklessness’.

Words and phrases — ‘reckless’.

1 Gummow, Hayne AND Heydon JJ. The term ‘reckless’ has various uses as a criterion of legal liability. This appeal turns upon one such use of the term in the New South Wales criminal law, but it is convenient first to consider some aspects of the civil law.

Gummow

2 When ‘reckless’ is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown ‘that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false’1. But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek2:

‘[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.’

This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result3.

3 To these expositions of the civil law by Lord Herschell and Lord Esher there may be added the following statement by Lord Edmund-Davies in his dissenting speech inR v Caldwell4:

‘So if a defendant says of a particular risk, “It never crossed my mind,' a jury could not on those words alone properly convict him of recklessness simply because they considered that the riskought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant's admission that he “closed his mind” to a particular risk could prove fatal, for, “A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that

there is a risk; and if he realises that there is a risk, that is the end of the matter'5.’ (original emphasis)

4 InLa Fontaine v The Queen6, Gibbs J discountenanced, in those States where legislation did not adopt terms such as ‘reckless’ or ‘reckless indifference’, their use in summing up at a trial on a murder count. His Honour said7:

‘To tell a jury that they may convict of murder when they are satisfied that the accused acted with recklessness or reckless indifference is to invite confusion between murder and manslaughter resulting from criminal negligence. In many, if not most, cases where the Crown alleges that the accused acted knowing that his act would probably cause death or grievous bodily harm it will also be alleged by the Crown, in the alternative, that the accused was guilty of criminal negligence. The expression “reckless” is also used to describe that very high degree of negligence which, if it causes death, amounts to manslaughter8. It is not easy to explain to a jury the difference between the reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter.’

5 Particular questions about recklessness in murder and disputes about distinctions between probable and possible consequences, which were considered inLa Fontaine, do not presently arise. However, it may be noted that in R v Crabbe9 they were resolved consistently with the views of Gibbs J.

6 As Gibbs J noted inLa Fontaine, criminal offences may be created by statute with a criterion of recklessness or reckless indifference. One such law is s 1(1) of the Criminal Damage Act 1971 (UK) which was considered by the House of Lords in R v G10. Section 1(1) states:

‘A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.’

InG, the House of Lords held that foresight of consequences was an essential ingredient of recklessness in s 1(1) and that a formulation which made no allowance for a defendant's youth or lack of mental capacity when assessing obviousness of the risk of damage to property was erroneous.

7 In his speech inG, Lord Bingham of Cornhill rejected the proposition that the above construction of the statute would lead to the acquittal of those whom public policy would require to be convicted. His Lordship said11:

‘There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant's assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.’

8 It is with the considerations canvassed in the above authorities in mind that the task of statutory construction upon which this appeal turns is to be undertaken. The foregoing demonstrates the general importance attached to the mental element for criminal culpability, but also the law's scepticism in accepting later assertions as to the existence or absence of a mental state which are at odds with practical experience of life. It should be added that, whereas in situations such as those inLa Fontaine and G, the recklessness concerns the physical consequences of the acts in question, this appeal concerns recklessness as to the mental state of another.

9 We turn now to the instant case. On 10 September 2003, the appellant was convicted at a jury trial in the District Court of New South Wales of an offence under s 112(1) of theCrimes Act 1900 (NSW) (‘the Act’). An appeal

against conviction was dismissed by the New South Wales Court of Criminal Appeal (Bryson JA, James and Kirby JJ)12.

10 The offence created by s 112(1) applies in various circumstances, which relevantly include breaking and entering any dwelling-house and committing therein ‘any serious indictable offence’. That expression means ‘an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more’ (s 4(1)). Section 61I of the Act states:

‘Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.’

It follows that an offence under s 61I is a serious indictable offence within the meaning of s 112(1).

11 The offence of which the appellant was convicted occurred in the early hours of 6 October 2001 at Bellingen, a New South Wales country town. The appellant broke into and entered the two storey dwelling-house where the complainant was sleeping upstairs. The complainant was alone in the house. The appellant committed a serious indictable offence there, namely sexual intercourse with the complainant without her consent and knowing that she was not consenting. The appellant was then aged 27 and the complainant 25. The appellant was a cousin of the complainant whom she had known, but not well, for about 15 years. At the trial, both the complainant and the appellant gave evidence and were cross-examined.

12 The offence of which the appellant was convicted was not that for which he was indicted. The indictment alleged an aggravated offence under s 112(2) of the Act, namely knowledge of the appellant at the time of the breaking and entering that there was a person in the dwelling-house13. However, while the jury found the appellant not guilty of the aggravated offence charged in the indictment, it did, as permitted by s 115A of the Act, return a verdict of guilty of the offence under s 112(1).

13 The appeal to this Court does not turn upon any of these provisions relating to property offences. Rather, it turns upon the interrelation between the sexual assault provisions in s 61I and s 61R(1). For purposes which include those of s 61I, s 61R(1) states:

‘[A] person who has sexual intercourse with another person without the consent of the other person andwho 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.’ (emphasis added)

14 In the course of his summing-up, the trial judge (Freeman DCJ) stated the substance of s 61R(1) and continued:

‘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.’

No objection at trial was taken to...